Sasol Ltd F-3ASR, filed Sep 22, 2021
Sasol Ltd (SSL)
As filed with the Securities and Exchange Commission on September 22, 2021
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Sasol Limited
(Exact Name of Registrant as Specified in its Charter)
Republic of South Africa
(State or Other Jurisdiction of Incorporation or Organization)
Not Applicable
(I.R.S. Employer Identification Number)
Sasol Place, 50 Katherine Street, Sandton, 2196
South Africa
Tel: +27 10 344 5000
(Address and Telephone Number of Registrant’s Principal Executive Offices)
Sasol Financing USA LLC
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
Not Applicable
(I.R.S. Employer Identification Number)
12120 Wickchester Lane
Houston, Texas 77079, USA
Tel: +1 281-588-3000
(Address and Telephone Number of Registrant’s Principal Executive Offices)
CT Corporation System
111 Eighth Avenue
New York, New York 10011, USA
Tel: +1 404-888-6494
(Name, Address and Telephone Number of Agent for Service)
Copies to:
Trevor Ingram
Shearman & Sterling (London) LLP
9 Appold Street
London EC2A 2AP, England
Tel: +44 (20) 7655-5000
Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. o
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, please check the following box. þ
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. þ
If this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company o
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act. o
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
CALCULATION OF REGISTRATION FEE
| Title of Each Class of Securities to be Registered(1) |
Amount to be Registered/Proposed Maximum Offering Price Per Unit/Proposed Maximum Aggregate Offering Price(4) | Amount of Registration Fee(5) |
|
Debt securities and guarantees(2) |
Indeterminate |
$0 |
|
Ordinary shares of Sasol Limited (including ordinary shares represented by American Depositary Shares) (3)
Rights to purchase ordinary shares of Sasol Limited (including ordinary shares represented by American Depositary Shares) (3) |
Indeterminate
Indeterminate |
$0
$0 |
| (1) | There is being registered hereunder an indeterminate initial offering price, aggregate number of, or principal amount of ordinary shares of Sasol Limited, rights to purchase ordinary shares of Sasol Limited (including ordinary shares represented by American Depositary Shares) or guaranteed debt securities of Sasol Financing USA LLC and related guarantees thereof, by Sasol Limited, as the case may be, each as may be issued from time to time at indeterminate prices. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are issued in units or represented by depositary shares. |
| (2) | Sasol Limited will fully and unconditionally guarantee the debt securities of Sasol Financing USA LLC under a guarantee of the payment of principal of, and any premium, interest and “Additional Amounts” on, such debt securities when due, whether at maturity or otherwise. No separate consideration will be received for the guarantees. |
| (3) | A portion of the ordinary shares, no par value, of Sasol Limited may be represented by American Depositary Shares, each of which represents one ordinary share. |
| (4) | An indeterminate aggregate initial offering price or number of the securities of each identified class is being registered as may from time to time be offered at indeterminate prices. |
| (5) | In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, the registrants are deferring payment of all of the registration fee. |
Prospectus
Sasol Financing USA LLC
(a Delaware limited liability company)
Sasol Limited
(incorporated in the Republic of South Africa with limited liability)
This prospectus offers:
Guaranteed Debt Securities of Sasol Financing USA LLC, Ordinary Shares of Sasol Limited and Rights to Subscribe for Ordinary Shares of Sasol Limited
_____________
We will provide the specific terms of the securities that may be offered, and the manner in which they are being offered, in one or more supplements to this prospectus. Any supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement, together with the additional information described under the heading “Where You Can Find More Information”, before investing in our securities. The amount and price of the offered securities will be determined at the time of the offering. This prospectus may be used by a selling securityholder to sell securities from time to time.
Our ordinary shares are listed on the Main Board of the exchange operated by JSE Limited under the symbol “SOL”. The American depositary shares, or ADSs, each representing one ordinary share, are listed on the New York Stock Exchange under the symbol “SSL”.
Investing in these securities involves risks that are described in the “Risk Factors” section contained in the applicable prospectus supplement and may be described in certain of the documents we incorporate by reference in this prospectus.
Neither the United States Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is September 22, 2021
This prospectus is part of a registration statement on Form F-3 that has been filed with the Securities and Exchange Commission, which we refer to as the “SEC”, using a “shelf” registration process. Under this shelf registration process, we may offer and sell the securities described in this prospectus in one or more offerings. This prospectus provides you with a general description of the securities we may offer. Each time we use this prospectus to offer the offered securities, we will provide one or more prospectus supplements that will contain specific information about the offering and the terms of those securities and the extent to which such terms differ from the general terms described in “Description of Debt Securities”, “Description of Share Capital”, “Description of ADSs” or “Description of Rights to Subscribe for Ordinary Shares”, as the case may be. The prospectus supplements may also add, update or change the information contained in this prospectus. You should read this prospectus and any applicable prospectus supplement(s), together with the additional information described under the heading “Where You Can Find More Information”, prior to purchasing any of the securities offered by this prospectus.
All references to the “group”, “us”, “we”, “our”, “company”, or “Sasol” in this prospectus are to Sasol Limited, its group of subsidiaries and its interests in associates, joint arrangements and structured entities. All references in this prospectus are to Sasol Limited or the companies comprising the group, as the context may require. All references to “(Pty) Ltd” refer to Proprietary Limited, a form of corporation in South Africa which restricts the right of transfer of its shares and prohibits the public offering of its shares.
WHERE YOU CAN FIND MORE INFORMATION
We file annual and other reports with the SEC. The SEC maintains a website (http://www.sec.gov) on which our annual and other reports are made available. You may also read and copy these documents at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005.
The SEC allows us to “incorporate by reference” the information we file with the SEC, which means that we can disclose important information to you by referring you to those documents that are considered part of this prospectus. Information that we file with the SEC in the future and incorporate by reference will automatically update and supersede the previously filed information. We incorporate by reference the document listed below:
| · | Our annual report on Form 20-F for the year ended June 30, 2021 filed with the SEC on September 22, 2021 (our “Form 20-F”). |
We also incorporate by reference in this prospectus all subsequent annual reports filed with the SEC on Form 20-F under the Securities Exchange Act of 1934 and those of our reports submitted to the SEC on Form 6-K that we specifically identify in such form as being incorporated by reference in this prospectus after the date hereof and prior to the completion of an offering of securities under this prospectus. This prospectus is part of a registration statement filed with the SEC.
As you read the above documents, this prospectus and any prospectus supplement, you may find inconsistencies in information from one document to another. If you find inconsistencies you should rely on the statements made in the most recent document, including this prospectus and any prospectus supplement. All information appearing in this prospectus is qualified in its entirety by the information and financial statements, including the notes thereto, contained in the documents we have incorporated by reference.
Upon written or oral request, we will provide to any person, at no cost to such person, including any beneficial owner to whom a copy of this prospectus is delivered, a copy of any or all of the information that has been incorporated by reference in this prospectus but not delivered with this prospectus. You may make such a request by writing or telephoning us at the following address or telephone number:
Senior Vice President: Legal, IP & Compliance
Sasol South Africa Ltd
Sasol Place
50 Katherine Street
Sandton 2196
South Africa
Telephone: +27 10 344 5000
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We have not authorized anyone to provide any information other than that contained or incorporated by reference in this prospectus and in any prospectus supplement or free writing prospectus prepared by us or on our behalf or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus is an offer to sell or to buy only the securities referred to herein, but only under circumstances and in jurisdictions where it is lawful to do so. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the cover page of those documents.
This prospectus includes and incorporates by reference forward-looking statements. We have based these forward-looking statements on our current expectations and projections of future events. These forward-looking statements are subject to risks, uncertainties and assumptions about our business. You should consider any forward-looking statements in light of the risks and uncertainties described in the information contained or incorporated by reference in this prospectus. See “Where You Can Find More Information”. We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. In light of these risks, uncertainties and assumptions, the future events described in this prospectus may not occur.
ENFORCEABILITY OF CERTAIN CIVIL LIABILITIES
Sasol Limited is incorporated under the laws of the Republic of South Africa (“South Africa”). Most of Sasol Limited’s directors and officers, and the experts named herein, reside outside the United States, principally in South Africa. You may not be able, therefore, to effect service of process within the United States upon those directors and officers with respect to matters arising under the federal securities laws of the United States.
In addition, most of our assets and the assets of our directors and officers are located outside the United States. As a result, you may not be able to enforce against us or our directors and officers judgments obtained in U.S. courts predicated on the civil liability provisions of the federal securities laws of the United States.
We have been advised by Edward Nathan Sonnenbergs Inc. (trading as ENSafrica), our South African counsel, that there is doubt as to the enforceability in South Africa, in original actions or in actions for enforcement of judgments of U.S. courts, of liabilities predicated on the U.S. federal securities laws.
Sasol is a global integrated chemicals and energy company spanning 30 countries. Through its talented people, it uses its expertise and selected technologies to safely and sustainably source, manufacture and market chemical and energy products globally.
Sasol Limited, which is the ultimate holding company of our group, is a public company. It was incorporated under the laws of the Republic of South Africa in 1979 and has been listed on the exchange operated by JSE Limited (“JSE”) since October 1979. Our ADRs have been listed on the New York Stock Exchange (“NYSE”) since April 2003. Our registered office and corporate headquarters are at Sasol Place, 50 Katherine Street, Sandton, 2196, South Africa. Our general website is at www.sasol.com. Information contained on our website is not, and shall not be deemed to be, part of this prospectus.
Sasol Financing USA LLC, or the Issuer, was formed as a limited liability company in 2018 under the laws of the State of Delaware. The Issuer’s sole member is Sasol (USA) Corporation, and the Issuer is an indirect wholly owned subsidiary of Sasol Limited. The Issuer’s principal activities are to provide treasury services to the group. It has no other operations.
For a description of some of the risks that could materially affect an investment in the securities being offered, you should read the discussion of risk factors in “Item 3D: Risk Factors”, starting on page 10 in our Form 20-F, and identified in our future filings with the SEC, incorporated herein by reference, and in any applicable prospectus supplement in relation to an offering of securities. Additional risk factors not presently known to us or that we currently deem immaterial may also impair our business operations.
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REASONS FOR THE OFFERING AND USE OF PROCEEDS
Except as may be described otherwise in a prospectus supplement, we will add the net proceeds from our sale of the securities under this prospectus to our general funds and will use them for our general corporate purposes, including for funding our working capital, project development or capital expenditure requirements.
Sasol Financing USA LLC may lend the net proceeds from the sale of any guaranteed debt securities offered by it to us or our other subsidiaries to be used for these purposes.
We may designate a specific allocation of the net proceeds of an offering of securities by us to a specific purpose, if any, at the time of the offering and will describe any allocation in the related prospectus supplement.
This prospectus provides you with a general description of the securities that may be offered. Unless the context otherwise requires, we will refer to the ordinary shares, rights, ADSs, guaranteed debt securities and guarantees as the “offered securities”. Each time offered securities are sold, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add to, update or change information contained in this prospectus. Accordingly, to the extent inconsistent, information in this prospectus is superseded by the information in the prospectus supplement. You should read both this prospectus and any prospectus supplement together with the additional information described under the heading “Where You Can Find More Information” prior to purchasing any of the securities offered by this prospectus.
The prospectus supplement to be attached to the front of this prospectus will describe the terms of the offering, including the amount and more detailed terms of offered securities, the initial public offering price, the price paid for the offered securities, net proceeds to us, the expenses of the offering, the terms of offers and sales outside of the United States, if any, our capitalization, the nature of the plan of distribution, the other specific terms related to the offering, and any U.S. federal income tax consequences and South African tax considerations applicable to the offered securities.
For more detail on the terms of the offered securities, you should read the exhibits filed with, or incorporated by reference into, our registration statement on Form F-3.
SOUTH AFRICAN RESERVE BANK APPROVAL
The issuance of guaranteed debt securities by Sasol Financing USA LLC under this prospectus will, in respect of the guarantee granted by Sasol Limited, require the approval of the Financial Surveillance Department of the South African Reserve Bank. The issuance of other securities under this prospectus may be subject to the approval of the Financial Surveillance Department of the South African Reserve Bank.
DESCRIPTION OF DEBT SECURITIES
Sasol Financing USA LLC (the “Issuer”) may issue debt securities in one or more distinct series. This prospectus describes certain general information in relation to the debt securities. Most of the financial terms and other specific terms of any series of debt securities that we offer will be described in a prospectus supplement to be attached to the front of this prospectus. Since the terms of specific debt securities may differ from the general information we have provided below, you should rely on information in the prospectus supplement that contradicts the general information set forth below.
Except where the context clearly refers to Sasol Limited as the guarantor of the debt securities, “we”, “us” and “our” in this section refers to the Issuer.
As required by United States federal law for all bonds and notes of companies that are publicly offered, the debt securities are governed by a document called an “indenture”. An indenture is a contract between us and a financial institution acting as trustee on behalf of holders of such bonds or notes. The trustee has two main roles. First, the trustee can enforce the rights of such persons against us if we default. There are some limitations on the extent to which the trustee acts on such persons’ behalf, described under “Events of Default”. Second, the trustee performs certain administrative duties for us.
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The Issuer will issue guaranteed debt securities under an indenture, as supplemented from time to time (the “indenture”), to be entered into among Sasol Financing USA LLC as issuer, Sasol Limited (“Sasol”) as guarantor, and Wilmington Savings Fund Society, FSB as trustee (the “trustee”). The indenture will be subject to and governed by the United States Trust Indenture Act of 1939, as amended.
As this section is a summary, it does not describe every aspect of the debt securities, the guarantee or the indenture. We urge you to read the indenture because it, and not this description, defines the rights of holders of debt securities. For example, in this section, we use capitalized words to signify terms that are specifically defined in the indenture. Some of the definitions are repeated in this prospectus, but for the rest you will need to read the indenture. We have filed the form of the indenture as an exhibit to the registration statement that we have filed with the SEC. See “Where You Can Find More Information” for information on how to obtain a copy of the indenture.
General
The debt securities offered by this prospectus will not be limited and the indenture will not limit the amount of debt securities that may be issued under it. The indenture provides that any debt securities proposed to be sold under this prospectus and any attached prospectus supplement may be issued under the indenture in one or more series.
The prospectus supplement, which will accompany this prospectus, will describe the particular series of debt securities being offered including:
| · | the designation or title of the series of debt securities; |
| · | the aggregate principal amount of the series of debt securities; |
| · | the percentage of the principal amount at which the series of debt securities will be offered; |
| · | the date or dates on which principal will be payable; |
| · | the rate or rates of interest (which may be either fixed or variable) and/or the method of determining such rate or rates of interest, if any; |
| · | the date or dates from which any interest will accrue, or the method of determining such date or dates, and the date or dates on which any interest will be payable; |
| · | the terms for redemption, extension or early repayment, if any; |
| · | the currencies in which the series of debt securities are issued and payable; |
| · | the provision for any sinking fund; |
| · | any provisions modifying the restrictive covenants in the indenture; |
| · | any provisions modifying the events of default in the indenture; |
| · | whether the series of debt securities are issuable in certificated form; |
| · | any provisions modifying the defeasance and covenant defeasance provisions; |
| · | any special tax implications, including provisions for original issue discount; |
| · | any provisions for convertibility or exchangeability of the debt securities into or for any other securities; |
| · | whether the debt securities are subject to subordination and the terms of such subordination; |
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| · | the terms of the guarantee; |
| · | the place or places of payment, transfer, conversion and/or exchange of the debt securities; |
| · | whether and under what circumstances we will pay additional amounts in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem the debt securities rather than pay the additional amounts, and the terms of this option; |
| · | any provisions granting special rights to the holders of the debt securities, including any provisions requiring us or Sasol to offer to repurchase debt securities, upon the occurrence of specific events; |
| · | the percentages of consolidated net tangible assets applicable to each of (i) the definition of Principal Property, (ii) the limitation on liens and (iii) the limitation on sale and leaseback transactions; and |
| · | any other terms. |
The debt securities will be the unsecured obligations of the Issuer. Unless the debt securities are subject to subordination as specified in the prospectus supplement, the debt securities will rank equally with the other unsecured and unsubordinated indebtedness of the Issuer. If subordinated, debt securities will be unsecured and subordinated in right of payment to the prior payment in full of all of the unsecured and unsubordinated indebtedness of the Issuer, subject to the terms of subordination to be set forth in the prospectus supplement.
Unless the prospectus supplement states otherwise, principal (and premium, if any) and interest, if any, will be paid by the Issuer in immediately available funds.
For purposes of this prospectus, any reference to the payment of principal of or premium or interest, if any, on debt securities will include additional amounts if required by the terms of the debt securities.
The indenture does not limit the amount of debt securities that may be issued thereunder from time to time. Debt securities issued under the indenture, when a single trustee is acting for all debt securities issued under the indenture, are called the “securities”. The indenture also provides that there may be more than one trustee, each with respect to one or more different series of securities. At a time when two or more trustees are acting under the indenture, each with respect to only certain series, the term “securities” means the one or more series of debt securities with respect to which each respective trustee is acting. In the event that there is more than one trustee under the indenture, the powers and trust obligations of each trustee described in this prospectus will extend only to those series of securities for which it is trustee. If two or more trustees are acting under the indenture, then the securities for which each trustee is acting would be treated as if issued under a separate indenture.
The indenture does not contain any provisions that give you protection in the event we issue a large amount of debt.
We refer you to the prospectus supplement for information with respect to any deletions from, modifications of or additions to the Events of Default or our covenants that are described below, including any addition of a covenant or other provision providing event risk or similar protection.
We have the ability to issue securities with terms different from those of securities previously issued and, without the consent of the holders thereof, to reopen a previous issue of a series of securities and issue additional securities of that series unless the reopening was restricted when that series was created.
Conversion and Exchange
If any debt securities are convertible into or exchangeable for other securities, the prospectus supplement will explain the terms and conditions of the conversion or exchange, including the conversion price or exchange ratio (or the calculation method), the conversion or exchange period (or how the period will be determined), if conversion or exchange will be mandatory or at the option of the holder or us, provisions for adjusting the conversion price or the exchange ratio and provisions affecting conversion or exchange in the event of the redemption of the underlying debt securities. These terms may also include provisions under which the number or amount of other securities to be received by the holders of the debt securities upon conversion or exchange would be calculated according to the market price of the other securities as of a time stated in the prospectus supplement.
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Full and Unconditional Guarantee of Debt Securities of the Issuer
Sasol will fully and unconditionally guarantee any debt securities issued by the Issuer under a guarantee of the payment of principal of, and any premium, interest and “additional amounts” on, these debt securities when due, whether at maturity or otherwise. Sasol must obtain the approval of the Financial Surveillance Department of the South African Reserve Bank (“FinSurv”) to provide this guarantee. Therefore, the issuance of guaranteed debt securities by the Issuer under this prospectus will, in respect of the guarantee granted by Sasol, require the approval of FinSurv. Unless the guarantees are subject to subordination as specified in the prospectus supplement, the guarantees will rank equally with other unsecured and unsubordinated indebtedness of Sasol. Because the guarantees determine the ranking of the debt guaranteed by them, guaranteed debt securities issued by the Issuer will also rank equally with other unsecured and unsubordinated indebtedness of Sasol, unless otherwise specified in the prospectus supplement. For a discussion of the payment of “additional amounts”, please see “Payment of Additional Amounts with Respect to the Debt Securities” below. Under the terms of the full and unconditional guarantee, holders of the guaranteed debt securities will not be required to exercise their remedies against the Issuer before they proceed directly against Sasol.
Payment of Additional Amounts with Respect to the Debt Securities
We will pay all amounts of principal of, and any premium and interest on, any debt securities, and all payments pursuant to the guarantee shall be made, without deduction or withholding for any present or future taxes, duties, assessments or other charges imposed by the government of South Africa, the United States of America or any other jurisdiction where we or the guarantor are organized or tax resident or in which we are treated as being engaged in a trade or business, as the case may be, or the government of a jurisdiction in which a successor to us or the guarantor, as the case may be, is organized or tax resident (“Taxing Jurisdiction”), unless such taxes, duties, assessments or governmental charges are required by such Taxing Jurisdiction to be withheld or deducted. In that event, we or the guarantor, as applicable, will pay such additional amounts of, or in respect of, principal and any premium and interest (“Additional Amounts”) as will result (after deduction of such taxes, duties, assessments or governmental charges and any additional taxes, duties, assessments or governmental charges payable in respect of such) in the payment to each holder of a debt security of the amounts which would have been payable in respect of such debt security or the guarantee thereof, as the case may be, had no such withholding or deduction been required, except that no Additional Amounts will be payable for or on account of:
| · | any tax, duty, assessment or other governmental charge imposed by any government of any jurisdiction other than a Taxing Jurisdiction; |
| · | any tax, duty, assessment or other governmental charge that is only payable because either: |
| o | some present or former connection exists between the holder, or a third party on behalf of such holder, or beneficial owner of the debt security and a Taxing Jurisdiction other than as a result of holding a debt security or enforcing its rights thereunder (including, but not limited to, being or having been a citizen, resident or national thereof, or being or having been present or engaged in business therein, or having or having had a permanent establishment therein, but not including the mere holding or ownership of a debt security); or |
| o | the holder presented the debt security for payment more than 30 days after the date on which the relevant payment becomes due or was provided for, whichever is later; |
| · | any estate, inheritance, gift, sale, transfer, personal property, value added, excise or similar tax, duty, assessment or other governmental charge; |
| · | any tax, duty, assessment or other governmental charge that is payable other than by deduction or withholding from a payment on the debt securities; |
| · | any tax, duty, assessment or other governmental charge that is imposed or withheld due to the holder or beneficial owner of the debt security failing to accurately comply with a request from us or the guarantor (A) to provide information concerning the nationality, residence or identity of the holder or such beneficial owner or (B) to make any claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by statute, treaty, regulation or administrative practice of the Taxing Jurisdiction as a precondition to exemption from or reduction in all or part of such tax, assessment or other governmental charge; |
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| · | any tax, assessment or other governmental charge imposed, deducted or withheld pursuant to section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) or otherwise imposed pursuant to sections 1471 through 1474 of the Code, in each case, as of the date of issuance of any series of debt securities (and any amended or successor version that is substantially comparable), any current or future regulations or agreements thereunder, official interpretations thereof or similar law or regulation implementing an intergovernmental agreement relating thereto; |
| · | any tax, assessment or other governmental charge imposed by reason of the holder’s past or present status as a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or a personal holding company with respect to the United States or as a corporation that accumulates earnings to avoid U.S. federal income tax; |
| · | any tax, assessment or other governmental charge imposed on interest received by (1) a 10% shareholder (as defined in section 871(h)(3)(B) of Code, and the regulations promulgated thereunder) of us or (2) a controlled foreign corporation that is related to us within the meaning of section 864(d)(4) of the Code, or (3) a bank receiving interest described in section 881(c)(3)(A) of the Code, to the extent such tax, assessment or other governmental charge would not have been imposed but for the holder’s status as described in clauses (1) through (3) of this bullet; |
| · | in the case of a holder that is a U.S. Person (as defined below), the amount of any withholding tax or deduction, or any similar tax, imposed by the United States of America or a political subdivision thereof; or |
| · | any combination of the withholdings, taxes, duties assessments or other governmental charges described above. |
Additionally, Additional Amounts shall not be paid with respect to any payment to a holder of a debt security who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner of such payment would not have been entitled to such Additional Amounts had it been the holder.
The prospectus supplement will describe any additional circumstances under which Additional Amounts will not be paid with respect to debt securities.
References in this prospectus and the prospectus supplement to principal or interest will be deemed to include Additional Amounts payable with respect thereto.
As used in this section “— Payment of Additional Amounts with Respect to the Debt Securities”, “U.S. Person” means any individual who is a citizen or resident of the United States of America for U.S. federal income tax purposes, a corporation created or organized in or under the laws of the United States of America, any state of the United States of America or the District of Columbia, a partnership or other entity created or organized in or under the laws of the United States of America, any state of the United States of America or the District of Columbia (other than a partnership or other entity that is not treated as a United States person under any applicable U.S. Treasury regulations), or any estate or trust the income of which is subject to U.S. federal income taxation regardless of its source.
Optional Tax Redemption
Unless otherwise indicated in the applicable prospectus supplement, we or the guarantor may redeem each series of debt securities at our or the guarantor’s option in whole but not in part at any time (except in the case of debt securities that have a variable rate of interest, which may be redeemed on any interest payment date), if:
| · | we or the guarantor would be required to pay Additional Amounts, as a result of any change in the tax laws or treaties (including the official application or interpretation thereof) of a Taxing Jurisdiction or, in the case of a treaty, to which a Taxing Jurisdiction is a party that, in the case of us or the guarantor, becomes effective on or after the date of issuance of that series (or, in the case of a successor, that becomes effective after the date such successor becomes such), as explained above under “Payment of Additional Amounts with Respect to the Debt Securities”, or |
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| · | there is a change in the official application or interpretation of a treaty to which a Taxing Jurisdiction is a party, this change is proposed and becomes effective on or after a date on which one of our affiliates borrows money from us, and because of the change this affiliate would be required to deduct or withhold tax on payments to us to enable us to make any payment of principal, premium, if any, or interest. |
In both of these cases, however, we will not be permitted to redeem a series of debt securities if we or the guarantor can avoid either the payment of Additional Amounts, or deductions or withholding, as the case may be, by using reasonable measures available to us or the guarantor. For the avoidance of doubt, reasonable measures shall not include changing our or the guarantor’s jurisdiction of incorporation.
Except in the case of outstanding original issue discount debt securities, which may be redeemed at the redemption price specified by the terms of that series of debt securities, the redemption price will be equal to the principal amount plus accrued interest to the date of redemption.
Additional Mechanics
We may issue the debt securities in registered form, in which case we may issue them either in book-entry form only or in “certificated” form. Debt securities issued in book-entry form will be represented by global securities. We expect that we will usually issue debt securities in book-entry form only represented by global securities.
Holders of Registered Debt Securities
Book-Entry Holders. We will issue registered debt securities in book-entry form only, unless we specify otherwise in our applicable prospectus supplement. This means debt securities will be represented by one or more global securities registered in the name of a depositary that will hold them on behalf of financial institutions that participate in the depositary’s book-entry system. These participating institutions, in turn, hold beneficial interests in the debt securities held by the depositary or its nominee. These institutions may hold these interests on behalf of themselves or customers.
Under the indenture, only the person in whose name a debt security is registered is recognized as the holder of that debt security. Consequently, for debt securities issued in global form, we will recognize only the depositary as the holder of the debt securities and we will make all payments on the debt securities to the depositary. The depositary will then pass along the payments it receives to its participants, which in turn will pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the debt securities.
As a result, investors will not own debt securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the debt securities are issued in global form, investors will be indirect holders, and not holders, of the debt securities.
Street Name Holders. In the future, we may issue debt securities in certificated form or terminate a global security. In these cases, investors may choose to hold their debt securities in their own names or in “street name”. Debt securities held in street name are registered in the name of a bank, broker or other financial institution chosen by the investor, and the investor holds a beneficial interest in those debt securities through the account he or she maintains at that institution.
For our debt securities held in street name, we will recognize only the intermediary banks, brokers and other financial institutions in whose names the debt securities are registered as the holders of those debt securities and we will make all payments on those debt securities to them. These institutions will pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so.
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Investors who hold debt securities in street name will be indirect holders, and not holders, of the debt securities.
Legal Holders. Our obligations, as well as the obligations of the trustee and those of any third parties employed by us or the trustee, run only to the legal holders of the debt securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a debt security or has no choice because we are issuing the debt securities only in global form.
For example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required, under agreements with depositary participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, if we want to obtain the approval of the holders for any purpose (for example, to amend an indenture or to relieve us of the consequences of a default or of our obligation to comply with a particular provision of an indenture), we would seek the approval only from the holders, and not the indirect holders, of the debt securities. Whether and how the holders contact the indirect holders is up to the holders.
When we refer to you, we mean those who invest in the debt securities being offered by this prospectus, whether they are the holders or only indirect holders of those debt securities. When we refer to your debt securities, we mean the debt securities in which you hold a direct or indirect interest.
Special Considerations for Indirect Holders. If you hold debt securities through a bank, broker or other financial institution, either in book-entry form or in street name, we urge you to check with that institution to find out:
| · | how it handles securities payments and notices; |
| · | whether it imposes fees or charges; |
| · | how it would handle a request for the holders’ consent, if ever required; |
| · | whether and how you can instruct it to send you debt securities registered in your own name so you can be a holder, if that is permitted in the future for a particular series of debt securities; |
| · | how it would exercise rights under the debt securities if there were a default or other event triggering the need for holders to act to protect their interests; and |
| · | if the debt securities are in book-entry form, how the depositary’s rules and procedures will affect these matters. |
Global Securities
What is a Global Security? As noted above, we usually will issue debt securities as registered securities in book-entry form only. A global security represents one or any other number of individual debt securities. Generally, all debt securities represented by the same global securities will have the same terms.
Each debt security that we issue in book-entry form will be represented by a global security that we deposit with and register in the name of a financial institution or its nominee that we select. The financial institution that we select for this purpose is called the depositary. Unless we specify otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New York, known as DTC, will be the depositary for all debt securities issued in book-entry form.
A global security may not be transferred to or registered in the name of anyone other than the depositary or its nominee, unless special termination situations arise. We describe those situations below under “Special Situations when a Global Security Will Be Terminated”. As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of all debt securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that has an account with the depositary. Thus, an investor whose security is represented by a global security will not be a holder of the debt security, but only an indirect holder of a beneficial interest in the global security.
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Special Considerations for Global Securities. As an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the investor’s financial institution and of the depositary, as well as general laws relating to securities transfers. The depositary that holds the global security will be considered the holder of the debt securities represented by the global security.
If debt securities are issued only in the form of a global security, an investor should be aware of the following:
| · | An investor cannot cause the debt securities to be registered in his or her name, and cannot obtain non-global certificates for his or her interest in the debt securities, except in the special situations we describe below. |
| · | An investor will be an indirect holder and must look to his or her own bank or broker for payments on the debt securities and protection of his or her legal rights relating to the debt securities, as we describe under “Holders of Registered Debt Securities” above. |
| · | An investor may not be able to sell interests in the debt securities to some insurance companies and other institutions that are not permitted by law to own securities in book-entry form. |
| · | An investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the debt securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective. |
| · | The depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in a global security. We and the trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in a global security. We and the trustee also do not supervise the depositary in any way. |
| · | The depositary requires that those who purchase and sell interests in a global security deposited in its book-entry system use immediately available funds. Your broker or bank may also require you to use immediately available funds when purchasing or selling interests in a global security. |
| · | Financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting payments, notices and other matters relating to the debt security. There may be more than one financial intermediary in the chain of ownership for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries. |
Special Situations when a Global Security Will Be Terminated. In a few special situations described below, a global security will be terminated and interests in it will be exchanged for certificates in non-global form (certificated securities). After that exchange, the choice of whether to hold the certificated debt securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in a global security transferred on termination to their own names, so that they will be holders. We have described the rights of holders and street name investors under “Holders of Registered Debt Securities” above.
The special situations for termination of a global security are as follows:
| · | if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security, and we do not appoint another institution to act as depositary within 120 days; |
| · | if we notify the trustee that we wish to terminate that global security; |
| · | if an Event of Default has occurred with regard to the debt securities represented by that global security and has not been cured or waived; or |
| · | if any other condition specified in our prospectus supplement occurs. |
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The prospectus supplement may list situations for terminating a global security that would apply only to the particular series of debt securities covered by the prospectus supplement. If a global security is terminated, only the depositary, and not we or the trustee, is responsible for deciding the names of the institutions in whose names the debt securities represented by the global security will be registered and, therefore, who will be the direct holders of those debt securities.
Payment and Paying Agents
We will pay interest to the person listed in the applicable registrar’s records as the owner of the debt security at the close of business on a particular day in advance of each due date for interest, even if that person no longer owns the debt security on the interest due date. That day, usually about two weeks in advance of the interest due date, is called the “regular record date”. Because we will pay all the interest for an interest period to the holders on the regular record date, holders buying and selling debt securities must work out between themselves the appropriate purchase price. The most common manner is to adjust the sales price of the debt securities to prorate interest fairly between buyer and seller based on their respective ownership periods within the particular interest period. This prorated interest amount is called “accrued interest”.
Payments on Global Securities. We will make payments on a global security in accordance with the applicable policies of the depositary as in effect from time to time. Under those policies, we will make payments directly to the depositary, or its nominee, and not to any indirect holders who own beneficial interests in the global security. An indirect holder’s right to those payments will be governed by the rules and practices of the depositary and its participants, as described under “Global Securities—What Is a Global Security?”.
Payments on Certificated Securities. We will make payments on a debt security in non-global certificated form as follows. We will pay interest that is due on an interest payment date by check mailed on the interest payment date to the holder at his or her address shown on the trustee’s records as of the close of business on the regular record date. We will make all payments of principal and premium, if any, by check at the office of the trustee in Wilmington, Delaware and/or at other offices that may be specified in the prospectus supplement or in a notice to holders, against surrender of the debt security. All payments by check will be made in next-day funds, that is funds that become available on the day after the check is cashed.
Alternatively, if a certificated security has a face amount of at least $10,000,000 and the holder asks us to do so, we will pay any amount that becomes due on the debt security by wire transfer of immediately available funds to an account at a bank in New York, on the due date. To request payment by wire, the holder must give the trustee or other paying agent appropriate transfer instructions at least 15 business days before the requested wire payment is due. In the case of any interest payment due on an interest payment date, the instructions must be given by the person who is the holder on the relevant regular record date. Any wire instructions, once properly given, will remain in effect unless and until new instructions are given in the manner described above.
Payment when Offices Are Closed. If any payment is due on a debt security on a day that is not a business day, we will make the payment on the next day that is a business day. Payments postponed to the next business day in this situation will be treated under the indenture as if they were made on the original due date. A postponement of this kind will not result in a default under any debt security or the indenture, and no interest will accrue on the postponed amount from the original due date to the next day that is a business day.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR BROKERS FOR INFORMATION ON HOW THEY WILL RECEIVE PAYMENTS ON THEIR DEBT SECURITIES.
Events of Default
You will have special rights if an Event of Default occurs in respect of the debt securities of your series and is not cured, as described later in this subsection.
What Is an Event of Default? Unless we specify otherwise in the applicable prospectus supplement, the term “Event of Default” in respect of the debt securities of your series means any of the following:
| · | failure to pay the principal of, or any premium on, a debt security of that series on its due date; |
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| · | failure to pay interest or additional amounts on a debt security of that series within 30 days of its due date; |
| · | failure to deposit any sinking fund payment in respect of debt securities of that series on its due date; |
| · | we or the guarantor remain in breach of a covenant in respect of debt securities of that series for 90 days after we receive a written notice of default stating we are in breach. The notice must be sent by either the trustee or holders of at least 25 percent of the principal amount of debt securities of that series; |
| · | we or the guarantor file for bankruptcy or certain other events of bankruptcy, insolvency or reorganization occur; |
| · | the guarantee ceases to be in full force and effect; or |
| · | any other Event of Default in respect of debt securities of that series described in the prospectus supplement occurs. |
An Event of Default for a particular series of debt securities does not necessarily constitute an Event of Default for any other series of debt securities issued under the indenture. The trustee may withhold notice to the holders of debt securities of any default, except in the payment of principal or interest, if it considers the withholding of notice to be in the interests of the holders of the affected series.
Remedies if an Event of Default Occurs. Unless we specify otherwise in the applicable prospectus supplement, if an Event of Default has occurred and has not been cured, the trustee or the holders of at least 25 percent in principal amount of the debt securities of the affected series may declare the entire principal amount of all the debt securities of that series to be due and immediately payable. This is called a declaration of acceleration of maturity. A declaration of acceleration of maturity may be canceled by the holders of at least a majority in principal amount of the debt securities of the affected series.
Except in cases of default, where the trustee has some special duties, the trustee is not required to take any action under the indenture at the request of any holders unless the holders offer the trustee protection from expenses and liability (called an “indemnity”) satisfactory to the trustee. If an indemnity reasonably satisfactory to the trustee is provided, the holders of a majority in principal amount of the outstanding debt securities of the relevant series may direct the time, method and place of conducting any lawsuit or other formal legal action seeking any remedy available to the trustee. The trustee may refuse to follow those directions in certain circumstances. No delay or omission in exercising any right or remedy will be treated as a waiver of that right, remedy or Event of Default.
Unless we specify otherwise in the applicable prospectus supplement, before you are allowed to bypass the trustee and bring your own lawsuit or other formal legal action or take other steps to enforce your rights or protect your interests relating to the debt securities, the following must occur:
| · | you must give the trustee written notice that an Event of Default has occurred and remains uncured; |
| · | the holders of at least 25 percent in principal amount of all outstanding debt securities of the relevant series must make a written request that the trustee take action because of the default and must offer indemnity to the trustee reasonably satisfactory to the trustee against the cost and other liabilities of taking that action; |
| · | the trustee must not have taken action for 60 days after receipt of the above notice and offer of indemnity; and |
| · | the holders of a majority in principal amount of the debt securities of the relevant series must not have given the trustee a direction inconsistent with the above notice. |
However, you are entitled at any time to bring a lawsuit for the payment of money due on your debt securities on or after the due date.
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Unless we specify otherwise in the applicable prospectus supplement, holders of a majority in principal amount of the debt securities of the affected series may waive any past defaults other than:
| · | the payment of principal, any premium or interest; and |
| · | in respect of a covenant that cannot be modified or amended without the consent of each holder. |
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR BROKERS FOR INFORMATION ON HOW TO GIVE NOTICE OR DIRECTION TO OR MAKE A REQUEST OF THE TRUSTEE AND HOW TO DECLARE OR CANCEL AN ACCELERATION.
Each year, we and the guarantor will furnish to the trustee a written statement of certain of our officers certifying that to their knowledge we are in compliance with the indenture and the debt securities, or else specifying any default.
Merger or Consolidation
Under the terms of the indenture, we and the guarantor are generally permitted to consolidate or merge with another entity. We are also permitted to sell all or substantially all of our assets to another entity. However, we may not take any of these actions unless all the following conditions are met:
| · | where we merge out of existence or sell our assets, the resulting entity must agree to be legally responsible for the debt securities; |
| · | immediately after giving effect to the merger or sale of assets, no default on the debt securities shall have occurred and be continuing. For purposes of this no-default test, a default would include an Event of Default that has occurred and has not been cured, as described under “Events of Default—What Is an Event of Default?”. A default for this purpose would also include any event that would be an Event of Default if the requirements for giving us a notice of default or our default having to exist for a specific period of time were disregarded; |
| · | we must deliver certain certificates and documents to the trustee; and |
| · | we must satisfy any other requirements specified in the prospectus supplement relating to a particular series of debt securities. |
Modification or Waiver
There are three types of changes we can make to the indenture and the debt securities issued under the indenture.
Changes Requiring Your Approval. First, there are changes that we cannot make to your debt securities without your specific approval. Following is a list of those types of changes unless we specify otherwise in the applicable prospectus supplement:
| · | change the stated maturity of the principal of (or premium, if any) or interest on a debt security; |
| · | reduce any amounts due on a debt security; |
| · | reduce the amount of principal payable upon acceleration of the maturity of a security following a default; |
| · | adversely affect any right of repayment at the holder’s option; |
| · | change the place or currency of payment on a debt security; |
| · | impair your right to sue for payment; |
| · | adversely affect any right to convert or exchange a debt security in accordance with its terms; |
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| · | reduce the percentage in principal amount of holders of debt securities whose consent is needed to modify or amend the indenture; |
| · | reduce the percentage in principal amount of holders of debt securities whose consent is needed to waive compliance with certain provisions of the indenture or to waive certain defaults under the indenture; |
| · | modify any other aspect of the provisions of the indenture dealing with modification and waiver of past defaults, changes to the quorum or voting requirements or the waiver of certain covenants; and |
| · | change any obligation to pay additional amounts, as explained above under “Payment of Additional Amounts with Respect to the Debt Securities”. |
Changes Not Requiring Approval. The second type of change does not require any vote by the holders of the debt securities. This type is limited to clarifications and certain other changes that would not adversely affect holders of the outstanding debt securities in any material respect. We also do not need any approval to make any change that affects only debt securities to be issued under the indenture after the change takes effect.
Changes Requiring Majority Approval. Any other change to the indenture or the debt securities would require the following approval unless we specify otherwise in the applicable prospectus supplement:
| · | if the change affects only one series of debt securities, it must be approved by the holders of a majority in principal amount of that series; |
| · | if the change affects more than one series of debt securities, it must be approved by the holders of a majority in principal amount of all of the series affected by the change, with all affected series voting together as one class for this purpose. |
In each case, any resolution passed or decision taken at any meeting of the holders of a series of debt securities must be in writing.
The holders of a majority in principal amount of any series of debt securities issued under the indenture may waive our and the guarantor’s compliance with some of our covenants in the indenture.
However, we cannot obtain a waiver of a payment default or of any of the matters covered by the bullet points included above under “Changes Requiring Your Approval”.
Further Details Concerning Voting. We will generally be entitled to set any day as a record date for the purpose of determining the holders of outstanding securities that are entitled to vote or take other action under the indenture. If we set a record date for a vote or other action to be taken by holders of one or more series, that vote or action may be taken only by persons who are holders of outstanding securities of those series on the record date, and the vote or other action must be taken within eleven months following the record date. Unless otherwise specified in the applicable prospectus supplement, the holder of a debt security will be entitled to one vote for each $1,000 principal amount of the debt security that is outstanding and held by it. Debt securities will not be considered outstanding, and therefore not eligible to vote, if we have deposited or set aside in trust money for their payment or redemption. Debt securities will also not be eligible to vote if they have been fully defeased as described later under “Defeasance—Full Defeasance”.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR BROKERS FOR INFORMATION ON HOW APPROVAL MAY BE GRANTED OR DENIED IF WE SEEK TO CHANGE THE INDENTURE OR THE DEBT SECURITIES OR REQUEST A WAIVER.
Defeasance
The following provisions will be applicable to each series of debt securities unless we state otherwise in the applicable prospectus supplement that the provisions of covenant defeasance and full defeasance will not be applicable to that series.
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Covenant Defeasance. We or the guarantor can make the deposit described below and be released from some of the restrictive covenants in the indenture under which a particular series was issued, subject to the conditions below. This is called “covenant defeasance”. In that event, you would lose the protection of those restrictive covenants but would gain the protection of having cash and U.S. government securities set aside in trust to repay your debt securities. In order to achieve covenant defeasance, we must do the following:
| · | we must deposit in trust for the benefit of all holders of the debt securities of the particular series a combination of cash and U.S. government or U.S. government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on the debt securities of the particular series on their various due dates; |
| · | the “covenant defeasance” must not otherwise result in a breach of the indenture or any of our or the guarantor’s material agreements; |
| · | no Event of Default must have occurred and remain uncured; |
| · | we must deliver to the trustee a legal opinion of our counsel confirming that, under current U.S. federal income tax law, we may make the above deposit without causing you to be taxed on the debt securities of the particular series any differently than if we did not make the deposit and just repaid the debt securities of the particular series ourselves at maturity; and |
| · | we must deliver to the trustee a legal opinion and officer’s certificate, each stating that all conditions precedent to “covenant defeasance” under the indenture have been met. |
If we accomplish covenant defeasance, you can still look to us for repayment of the debt securities if there is a shortfall in the trust deposit or the trustee is prevented from making payment. In fact, if one of the remaining Events of Default occurred (such as our bankruptcy) and the debt securities became immediately due and payable, there might be a shortfall. Depending on the event causing the default, you may not be able to obtain payment of the shortfall.
Full Defeasance. If there is a change in U.S. federal tax law, as described below, we or the guarantor can legally release ourselves from all payment and other obligations on the debt securities of a particular series (called “full defeasance”) if we put in place the following arrangements for you to be repaid:
| · | we must deposit in trust for the benefit of all holders of the debt securities of the particular series a combination of cash and U.S. government or U.S. government agency notes or bonds that will generate enough cash to make interest, principal and any other payments on the debt securities of the particular series on their various due dates; |
| · | the “full defeasance” must not otherwise result in a breach of the indenture or any of our or the guarantor’s material agreements; |
| · | no Event of Default must have occurred and remain uncured; |
| · | we must deliver to the trustee a legal opinion confirming that there has been a change in current U.S. federal tax law or an IRS ruling that lets us make the above deposit without causing you to be taxed on the debt securities of the particular series any differently than if we did not make the deposit and just repaid the debt securities of the particular series ourselves at maturity. Under current U.S. federal tax law, the deposit and our legal release from the debt securities of the particular series would be treated as though we paid you your share of the cash and notes or bonds at the time the cash and notes or bonds were deposited in trust in exchange for your debt securities and you would recognize gain or loss on the debt securities at the time of the deposit; and |
| · | we must deliver to the trustee an opinion of counsel and an officer’s certificate, each stating that all conditions precedent to “full defeasance” under the indenture have been met. |
If we ever did accomplish full defeasance, as described above, you would have to rely solely on the trust deposit for repayment of the debt securities. You could not look to us for repayment in the unlikely event of any shortfall.
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Form, Exchange and Transfer of Registered Securities
If registered debt securities cease to be issued in global form, they will be issued:
| · | only in fully registered certificated form; |
| · | without interest coupons; and |
| · | unless we indicate otherwise in the applicable prospectus supplement, in denominations of $200,000 and amounts that are multiples of $1,000. |
Holders may exchange their certificated securities for debt securities of smaller denominations or combined into fewer debt securities of larger denominations, as long as the total principal amount is not changed.
Holders may exchange or transfer their certificated securities at the place of payment as specified in the applicable prospectus supplement. We have appointed the trustee to act as our agent for registering debt securities in the names of holders transferring debt securities. We may appoint another entity to perform these functions or perform them ourselves.
Holders will not be required to pay a service charge to transfer or exchange their certificated securities, but they may be required to pay any tax or other governmental charge associated with the transfer or exchange. The transfer or exchange will be made only if our transfer agent is satisfied with the holder’s proof of legal ownership.
If we have designated additional transfer agents for your debt security, they will be named in the applicable prospectus supplement. We may appoint additional transfer agents or cancel the appointment of any particular transfer agent. We may also approve a change in the office through which any transfer agent acts.
If any debt securities of a particular series are redeemable, we may block the transfer or exchange of those debt securities during the period beginning 15 days before the day we mail the notice of redemption and ending on the day of that mailing, in order to freeze the list of holders to prepare the mailing. We may also refuse to register transfers or exchanges of any debt securities selected for redemption, except that we will continue to permit transfers and exchanges of the unredeemed portion of any debt security that will be partially redeemed.
If a registered debt security is issued in global form, only the depositary will be entitled to transfer and exchange the debt security as described in this subsection, since it will be the sole holder of the debt security.
Resignation of Trustee
The trustee may resign or be removed with respect to one or more series of securities provided that a successor trustee is appointed to act with respect to these series. In the event that two or more persons are acting as trustee with respect to different series of securities under the indenture, each of the trustees will be a trustee of a trust separate and apart from the trust administered by any other trustee.
Limitation on Liens
Sasol covenants in the indenture that it will not, nor will it permit any “Restricted Subsidiary” to, create, incur, issue, assume or guarantee any indebtedness for money borrowed (“Debt”) if such Debt is secured by any mortgage, security interest, pledge, lien or other similar encumbrance (a “lien” or “liens”) upon any “Principal Property” of it or any Restricted Subsidiary or any shares of stock of or debt owed to any Restricted Subsidiary, whether owned at the date of the indenture or thereafter acquired, without effectively securing the securities issued under the indenture equally and ratably with or prior to the secured Debt. Please see further below for definitions of “Restricted Subsidiary” and “Principal Property”.
This lien restriction will not apply to, among other things:
| · | liens on property, shares of stock or indebtedness of any corporation existing at the time it becomes a subsidiary of Sasol provided that any such lien was not created in contemplation of becoming a subsidiary; |
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| · | liens on property or shares of stock existing at the time of acquisition thereof or to secure the payment of all or any part of the purchase price thereof or all or part of the cost of the improvement, construction, alteration or repair of any building, equipment or facilities or of any other improvements on, all or any part of the property or to secure any Debt incurred prior to, at the time of, or within 12 months after, in the case of shares of stock, the acquisition of such shares and, in the case of property, the later of the acquisition, the completion of construction (including any improvements, alterations or repairs on an existing property) or the commencement of commercial operation of such property, which Debt is incurred for the purpose of financing all or any part of the purchase price thereof or all or part of the cost of improvement, construction, alteration or repair thereon; |
| · | liens on any Principal Property or on shares of stock or indebtedness of any Restricted Subsidiary, to secure all or any part of the cost of exploration, drilling, development, improvement, construction, alteration or repair of any part of the Principal Property or to secure any Debt incurred to finance or refinance all or any part of such cost; |
| · | liens existing at the date of the indenture; |
| · | liens that secure debt owing by a Restricted Subsidiary to Sasol or any subsidiary of Sasol; |
| · | liens on property owned or held by any corporation or on shares of stock or indebtedness of any corporation, in either case existing at the time such corporation is merged into or consolidated or amalgamated with Sasol or a Restricted Subsidiary, or at the time of a sale, lease or other disposition of the properties of a corporation as an entirety or substantially as an entirety to Sasol or a Restricted Subsidiary; |
| · | liens arising by operation of law (other than by reason of default); |
| · | liens to secure Debt incurred in the ordinary course of business and maturing not more than 12 months from the date incurred; |
| · | liens arising pursuant to the specific terms of any license, joint operating agreement, unitization agreement or other similar document evidencing the interest of Sasol or a Restricted Subsidiary in any mine or any oil or gas producing property or related facilities (including pipelines), provided that any such lien is limited to such interest; |
| · | liens on any Principal Property or on shares of stock or indebtedness of any Restricted Subsidiary in relation to which Project Finance Indebtedness (as defined below) has been incurred, to secure that Project Finance Indebtedness; |
| · | liens created in accordance with normal practice to secure Debt of Sasol whose main purpose is the raising of finances under any options, futures, swaps, short sale contracts or similar or related instruments which relate to the purchase or sale of securities, commodities or currencies; and |
| · | any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any liens referred to above, or of any Debt secured thereby; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement lien shall be limited to all or any part of the same property, shares of stock or indebtedness that secured the lien extended, renewed or replaced (plus improvements on such property), or property received or shares of stock issued in substitution or exchange therefor. |
In addition, the lien restriction does not apply to Debt secured by a lien, if the Debt, together with all other Debt secured by liens on Principal Property of Sasol or any Restricted Subsidiary (not including permitted liens described above) and the Attributable Debt (generally defined as the discounted present value of net rental payments, but excluding payments on bona fide operating leases) associated with Sale and Lease Back Transactions entered into after our first issuance of debt securities under the indenture (but not including “Sale and Lease Back Transactions” pursuant to which debt has been retired), does not exceed a certain percentage of the consolidated net tangible assets of Sasol and its consolidated subsidiaries, as shown on the audited consolidated balance sheet prepared in accordance with International Financial Reporting Standards. The specific percentage will be determined at the time we issue any debt and will be described in the applicable prospectus supplement.
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The following types of transactions shall not be deemed to create Debt secured by a lien:
| · | the sale or other transfer, by way of security or otherwise, of (a) coal, oil, gas or other minerals in place or at the wellhead or a right or license granted by any governmental authority to explore for, drill, mine, develop, recover or get such coal, oil, gas or other minerals (whether such license or right is held with others or not) for a period of time until, or in an amount such that, the purchaser will realize therefrom a specified amount of money (however determined) or a specified amount of such coal, oil, gas or other minerals, or (b) any other interest in property of the character commonly referred to as a “production payment”, “royalty” or “stream”; and |
| · | liens on property in favor of the United States or any state thereof, or the Republic of South Africa, or any other country, or any political subdivision of any of the foregoing, or any department, agency or instrumentality of the foregoing, to secure partial, progress, advance or other payments pursuant to the provisions of any contract or statute including, without limitation, liens to secure indebtedness of the pollution control or industrial revenue bond type, or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or cost of construction of the property or acquisition of equipment subject to such liens. |
The term “Restricted Subsidiary” is defined in the indenture to mean any wholly owned subsidiary of Sasol which owns a Principal Property, unless the subsidiary is primarily engaged in the business of a finance company and any other subsidiary designated as a “Restricted Subsidiary” in the applicable prospectus supplement.
The term “Principal Property” is defined in the indenture to mean (a) oil or gas producing property (including leases, rights or other authorizations to conduct operations over any producing property), (b) any refining or manufacturing plant, (c) any mine, mineral deposit or processing plant, or (d) any building, pipeline, structure, dam or other facility, together with the land upon which it is erected and fixtures comprising a part thereof, in each case whose net book value exceeds a certain percentage of consolidated net tangible assets of Sasol, unless the board of directors of Sasol thinks that the property is not of material importance to its overall business or that the portion of a property in question is not of material importance to the rest of such property. The specific percentage will be determined at the time we issue any debt and will be described in the applicable prospectus supplement.
The term “Project Finance Indebtedness” is defined in the indenture to mean any indebtedness incurred in relation to any asset for the purposes of financing the whole or any part of the acquisition, creation, construction, expansion, operation, improvement or development of such asset where the financial institution(s) or other persons to whom such indebtedness is owed (and any trustees or other agents therefor) has or have recourse to (i) the applicable project borrower (where such project borrower is formed solely or principally for the purpose of the relevant project) and any or all of its rights and assets and/or (ii) such asset (or any derivative asset thereof) but, in either case, does not or do not have recourse to Sasol or any of its subsidiaries other than in respect of (a) Sasol’s or such subsidiary’s interests in the equity or indebtedness of the applicable project borrower or the interests of Sasol or any other of its subsidiaries in the equity or indebtedness of any subsidiary that holds, directly or indirectly, interests in the equity or indebtedness of the applicable project borrower, (b) the rights of the applicable project borrower under any contract with Sasol or any of its other subsidiaries, (c) obligations of Sasol or such subsidiary pursuant to completion or performance guarantees or price support, cost overrun support or other support obligations, in each case, in connection with the relevant project or (d) claims for indemnity or damages arising from breach of representations or covenants made by Sasol or such subsidiary to such financial institution or other person.
Limitation on Sale and Lease Back Transactions
Sasol covenants in the indenture that it will not, nor will it permit any Restricted Subsidiary, to enter into any arrangement with any party providing for the leasing to it or any Restricted Subsidiary of any Principal Property (except for temporary leases for a term, including renewals, of not more than three years) which has been or is to be sold by it or the Restricted Subsidiary to the party (a “Sale and Lease Back Transaction”), unless:
| · | the Attributable Debt (generally defined as the discounted present value of net rental payments, but excluding payments on bona fide operating leases) of the Sale and Lease Back Transaction, together with the Attributable Debt of all other Sale and Lease Back Transactions entered into since the first issuance of debt securities under the indenture and the aggregate principal amount of its debt secured by liens on Principal Property of Sasol or any Restricted Subsidiary or any shares of stock of or debt owed to any Restricted Subsidiary (but excluding debt secured by permitted liens bulleted under “Limitation on Liens” above, and excluding Sale and Lease Back Transactions pursuant to which debt has been retired) would not exceed a certain percentage of the consolidated net tangible assets of Sasol, as shown on the audited balance sheet prepared in accordance with International Financial Reporting Standards, which percentage will be determined at the time we issue any debt and will be described in the applicable prospectus supplement; |
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| · | Sasol or the Restricted Subsidiary would be entitled to incur debt secured by a lien on the Principal Property to be leased without securing the securities issued under the indenture, as described in the bullet points under “Limitation on Liens” above; |
| · | Sasol applies an amount equal to the fair value of the Principal Property that is the subject of a Sale and Leaseback Transaction to the retirement of the securities, or to the retirement of long-term indebtedness of Sasol or a Restricted Subsidiary that is not subordinated to the debt securities issued; or |
| · | Sasol enters into a bona fide commitment to expend for the acquisition or improvement of a Principal Property an amount at least equal to the fair value of the Principal Property leased. |
Certain Considerations Relating to Foreign Currencies
Debt securities denominated or payable in currencies other than U.S. dollars may entail significant risks to U.S. holders. These risks include the possibility of significant fluctuations in the currency markets, the imposition or modification of foreign exchange controls and potential illiquidity in the secondary market. These risks will vary depending upon the currency or currencies involved and will be more fully described in the applicable prospectus supplement.
For a description of our share capital, including the rights and obligations attached thereto, please refer to “Item 10. Additional Information—10.B Memorandum of Incorporation” in our Form 20-F, incorporated by reference herein.
For a description of our ADSs, including the rights and obligations attached thereto, please refer to “Item 12.D American depositary shares” in our Form 20-F and Exhibit 2.2 to our Form 20-F, incorporated by reference herein.
DESCRIPTION OF RIGHTS TO SUBSCRIBE FOR ORDINARY SHARES
We may issue subscription rights to subscribe for our ordinary shares. We may issue these rights independently or together with any other offered security. The rights may or may not be transferable in the hands of their holders.
The applicable prospectus supplement will describe the specific terms of any subscription rights offering, including:
| · | the title of the subscription rights; |
| · | the securities for which the subscription rights are exercisable; |
| · | the exercise price for the subscription rights; |
| · | the number of subscription rights issued; |
| · | the extent to which the subscription rights are transferable; |
| · | if applicable, a discussion of the material U.S. federal or other income tax considerations applicable to the issuance or exercise of the subscription rights; |
| · | any other terms of the subscription rights, including terms, procedures and limitations relating to the exchange and exercise of the subscription rights; |
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| · | if applicable, the record date to determine who is entitled to the subscription rights and the ex-rights date; |
| · | the date on which the rights to exercise the subscription rights will commence, and the date on which the rights will expire; |
| · | the extent to which the offering includes an over-subscription privilege with respect to unsubscribed securities; and |
| · | if applicable, the material terms of any standby or other underwriting arrangement we enter into in connection with the offering. |
Each subscription right will entitle its holder to subscribe for cash a number of our ordinary shares, ADSs or any combination thereof at an exercise price described in the applicable prospectus supplement. Subscription rights may be exercised at any time up to the close of business on the expiration date set forth in the prospectus supplement. After the close of business on the expiration date, all unexercised subscription rights will become void.
Upon receipt of payment and the subscription form properly completed at the subscription rights agent’s office or another office indicated in the applicable prospectus supplement, we will, as soon as practicable, deliver our ordinary shares or ADSs purchasable with this exercise. Rights to purchase ordinary shares represented by ADSs will be evidenced by certificates issued by our ADS rights agent upon receipt by the ADS depositary of the rights to subscribe for ordinary shares registered hereby. The applicable prospectus supplement may offer more details on how to exercise the subscription rights.
We may determine to offer subscription rights to our shareholders only or additionally to persons other than shareholders as described in the applicable prospectus supplement. In the event subscription rights are offered to our shareholders only and their rights remain unexercised, we may determine to offer the unsubscribed offered securities to persons other than shareholders. In addition, we may enter into a standby or other underwriting arrangement with one or more underwriters under which the underwriter(s) will subscribe for any offered securities remaining unsubscribed for after the offering, as described in the applicable prospectus supplement.
The prospectus supplement will describe certain material U.S. federal income tax consequences of the ownership and disposition of any securities offered under this prospectus to certain U.S. persons (within the meaning of the U.S. Internal Revenue Code of 1986, as amended) who are initial investors, including, to the extent applicable, any such consequences relating to debt securities payable in a currency other than the U.S. dollar, issued at an original issue discount for U.S. federal income tax purposes or containing early redemption provisions or other special items.
The prospectus supplement will describe certain material South African income tax consequences to an investor who is a non-resident of South Africa of acquiring, owning and disposing of any securities offered under this prospectus, including whether the payments of principal of, premium and interest, if any, on the debt securities, and the payment of dividends, if any, on the ordinary shares, will be subject to South African withholding tax.
The offered securities may be sold, and the underwriters may resell these offered securities, directly or through agents in one or more transactions, including negotiated transactions, at a fixed public offering price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices. The offered securities may be sold in portions outside the United States at an offering price and on terms specified in the applicable prospectus supplement relating to a particular issue of these offered securities. Without limiting the generality of the foregoing, any one or more of the following methods may be used when selling the offered securities:
| · | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
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| · | block trades in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
| · | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| · | an exchange distribution in accordance with the rules of the applicable exchange; |
| · | privately negotiated transactions; |
| · | settlement of short sales entered into after the date of this prospectus; |
| · | sales in which broker-dealers agree with us to sell a specified number of securities at a stipulated price per security; |
| · | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| · | by pledge to secure debts or other obligations; |
| · | by an underwritten public offering; |
| · | by an underwritten offering of debt instruments convertible into or exchangeable for our ordinary shares on terms to be described in the applicable prospectus supplement; |
| · | in a combination of any of the above; or |
| · | any other method permitted pursuant to applicable law. |
In addition, the offered securities may be sold by way of exercise of rights granted pro rata to our existing shareholders.
The offered securities may also be sold short and securities covered by this prospectus may be delivered to close out such short positions, or the securities may be loaned or pledged to broker-dealers that in turn may sell them. Options, swaps, derivatives or other transactions may be entered into with broker-dealers or other financial institutions which require the delivery to such broker-dealer or other financial institution of the offered securities and ordinary shares, respectively, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
Any underwriters or agents will be identified and their compensation described in the applicable prospectus supplement.
In connection with the sale of offered securities, the underwriters or agents may receive compensation from us or from purchasers of the offered securities for whom they may act as agents. The underwriters may sell offered securities to or through dealers, who may also receive compensation from the underwriters or from purchasers of the offered securities for whom they may act as agents. Compensation may be in the form of discounts, concessions or commissions. Underwriters, dealers and agents that participate in the distribution of the offered securities may be deemed to be underwriters as defined in the U.S. Securities Act of 1933, as amended, or the U.S. Securities Act, and any discounts or commissions received by them from us and any profit on the resale of the offered securities by them may be treated as underwriting discounts and commissions under the U.S. Securities Act.
We may enter into agreements that will entitle the underwriters, dealers and agents to indemnification by us against and contribution toward certain liabilities, including liabilities under the U.S. Securities Act.
Certain underwriters, dealers and agents and their associates may be customers of, engage in transactions with or perform commercial banking, investment banking, advisory or other services for us, including our subsidiaries, in the ordinary course of their business.
If so indicated in the applicable prospectus supplement relating to a particular issue of offered securities, the underwriters, dealers or agents will be authorized to solicit offers by certain institutions to purchase the offered securities under delayed delivery contracts providing for payment and delivery at a future date. These contracts will be subject only to those conditions set forth in the applicable prospectus supplement, and the prospectus supplement will set forth the commission payable for solicitation of these contracts.
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Certain legal matters with respect to South African law will be passed upon for us by our South African counsel, Edward Nathan Sonnenbergs Inc. (trading as ENSafrica). Certain legal matters with respect to United States and New York law will be passed upon for us by Shearman & Sterling (London) LLP, who may rely, without independent investigation, on Edward Nathan Sonnenbergs Inc. (trading as ENSafrica) regarding certain South African legal matters.
The consolidated financial statements and management’s assessment of the effectiveness of internal control over financial reporting (which is included in Management’s Report on Internal Control over Financial Reporting) incorporated in this prospectus by reference to the Annual Report on Form 20-F for the year ended June 30, 2021 have been so incorporated in reliance on the report (which contains an adverse opinion on the effectiveness of internal control over financial reporting) of PricewaterhouseCoopers Inc., an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 8. | Indemnification of Directors and Officers |
South African law
Section 78(6) of the South African Companies Act, 2008 (the “South African Companies Act”) provides that:
| · | a company may not indemnify a director or officer in respect of any liability for any loss, damages or costs arising as a direct or indirect consequence of: |
| o | the director or officer having acted in the name of the company, signed anything on behalf of the company, or purported to bind the company or authorize the taking of any action by or on behalf of the company, despite knowing that the director of officer lacked the authority to do so; |
| o | the director or officer having acquiesced in the carrying on of the company’s business despite knowing that it was being conducted recklessly, with gross negligence, with intent to defraud any person or for any fraudulent purposes; |
| o | the director or officer having been a party to an act or omission by the company despite knowing that the act or omission was calculated to defraud a creditor, employee or shareholder of the company, or had another fraudulent purpose; or |
| o | wilful misconduct or wilful breach of trust on the part of the director or officer; and |
| · | a company may not indemnify a director or officer in respect of any fine that may be imposed on a director or officer as a consequence of that director or officer having been convicted of an offense, unless the conviction was based on strict liability. |
“Knowing” in this context means that the director or officer had actual knowledge or was in a position in which they reasonably ought to have:
| · | had actual knowledge; |
| · | investigated the matter to an extent that would have provided the director or officer with actual knowledge; or |
| · | taken other measures which, if taken, would reasonably be expected to have provided the director or officer with actual knowledge of the matter. |
Clause 36 of the Memorandum of Incorporation of Sasol Limited provides in effect that Sasol Limited may directly or indirectly indemnify a director, former director, alternate director, prescribed officer, member of a committee of the board of Sasol Limited (irrespective of whether that person is also a member of the board of Sasol Limited) or member of Sasol Limited’s audit committee (a “Person”) for:
| · | any liability, other than a liability excluded under Section 78(6) of the South African Companies Act; and |
| · | any expenses to defend litigation in any proceedings arising out of the Person’s service to Sasol Limited, irrespective of whether Sasol Limited has advanced those expenses, if the proceedings: |
| o | are abandoned or exculpate the Person; or |
| o | arise in respect of any other liability for which Sasol Limited may indemnify the Person. |
According to Section 77(7) of the South African Companies Act, proceedings to recover any loss, damages or costs for which a person is or may be held liable may generally not be commenced more than three years after the act of omission that gave rise to that liability.
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A company may in, in accordance with Section 78(8) of the South African Companies Act, claim reimbursement from any director or officer of the company for any money paid directly or indirectly to or on behalf of such director or officer in any manner inconsistent with the provisions of Section 78 of the South African Companies Act.
Section 78(7) of the South African Companies Act provides that, except to the extent that the company’s Memorandum of Incorporation disallows it, a company may purchase insurance to protect a director or officer against any liability or expense for which the company may indemnify a director or officer and to protect the company against any expenses that the company is permitted to advance to a director or officer.
Delaware law
The Issuer is a Delaware limited liability company. Section 18-108 of the Delaware Limited Liability Company Act provides that a limited liability company may, subject to such standards and restrictions, if any, as are set forth in its limited liability company agreement, and has the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.
Pursuant to the limited liability company agreement of the Issuer, the Issuer shall indemnify a member manager, director, officer, employee or agent of the Issuer and certain other persons serving at the request of the Issuer in related capacities against amounts paid and expenses incurred in connection with an action or proceeding to which he or she is, or is threatened to be made, a party by reason of such position, if such person shall have acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Issuer, and, in any criminal proceedings, if such person had no reasonable cause to believe his or her conduct was unlawful; provided that, in the case of actions brought by or in the right of the Issuer, no indemnification shall be made with respect to any matter as to which such person shall have been adjudged to be liable to the Issuer unless and only to the extent that the adjudicating court determines that such indemnification is proper under the circumstances.
The directors and officers of the Issuer are insured under policies maintained by Sasol Limited, within the limits and subject to the limitations of the policies, against certain liabilities incurred by them in their capacities as such, including, among other things, certain liabilities under the Securities Act of 1933.
| Item 9. | Exhibits |
Exhibits:
| *1.1 | Form of underwriting agreement for guaranteed debt securities of Sasol Financing USA LLC. |
| *1.2 | Form of underwriting agreement for equity securities of Sasol Limited. |
| 4.1 | Form of indenture for guaranteed debt securities of Sasol Financing USA LLC, among Sasol Financing USA LLC, as issuer, Sasol Limited, as guarantor, and Wilmington Savings Fund Society, FSB, as trustee. |
| 4.2 | Form of guaranteed fixed rate note of Sasol Financing USA LLC. |
| *4.3 | Form of letter of allocation to exercise rights to purchase equity securities of Sasol Limited. |
| 5.1 | Opinion of Shearman & Sterling (London) LLP, U.S. counsel, as to the validity of the debt securities. |
| 5.2 | Opinion of Edward Nathan Sonnenbergs Inc. (trading as ENSafrica), South African counsel to Sasol Limited, as to the validity of the guarantee of the debt securities. |
| 5.3 | Opinion of Edward Nathan Sonnenbergs Inc. (trading as ENSafrica), South African counsel to Sasol Limited, as to the validity of Sasol Limited’s ordinary shares and rights to subscribe for Sasol Limited’s ordinary shares. |
| 23.1 | Consent of PricewaterhouseCoopers Inc., independent registered public accounting firm. |
| 23.2 | Consent of Shearman & Sterling (London) LLP (included in its opinion filed as Exhibit 5.1). |
| 23.3 | Consent of Edward Nathan Sonnenbergs Inc. (trading as ENSafrica) (included in its opinions filed as Exhibit 5.2 and 5.3). |
| 24.1 | Powers of Attorney of the registrants (included on the signature pages). |
| 25.1 | Statement of eligibility of Wilmington Savings Fund Society, FSB, as trustee, under the Trust Indenture Act of 1939 on Form T-1 relating to the Sasol Financing USA LLC guaranteed debt indenture. |
_________
| * | To be filed on a Form 6-K depending on the nature of the offering, if any, pursuant to this registration statement. |
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| Item 10. | Undertakings |
(a) Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by such registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act of 1933 need not be furnished, provided, that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act of 1933 or Rule 3-19 if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.
(5) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by such registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
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(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(6) That, for the purpose of determining liability of such registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: Each of the undersigned registrants undertakes that in a primary offering of securities of such undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, such undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of such undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of such undersigned registrant or used or referred to by such undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about such undersigned registrant or its securities provided by or on behalf of such undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by such undersigned registrant to the purchaser.
(b) Each undersigned registrant hereby undertakes that for purposes of determining any liability under the Securities Act of 1933, each filing of such registrant’s annual reports pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of any registrant pursuant to the foregoing provisions, or otherwise, each registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by such registrant of expenses incurred or paid by a director, officer or controlling person of such registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, such registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(d) Each undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
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(2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant, Sasol Limited, a corporation organized and existing under the laws of the Republic of South Africa, certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Form F-3 registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Johannesburg, South Africa on the 22 day of September, 2021.
| SASOL LIMITED | ||
| By: | /s/ Paul Victor | |
| Name: Paul Victor | ||
| Title: Chief Financial Officer | ||
POWER OF ATTORNEY
Each of the undersigned do hereby constitute and appoint Paul Victor his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in his or her name, place and stead, in any and all capacities (including his or her capacity as a director and/or officer of the registrant), to sign any and all amendments and post-effective amendments and supplements to this registration statement, and including any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, and to file the same, with all exhibits thereto and other documents in connection therewith, with the SEC, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Form F-3 registration statement has been signed by the following persons in the capacities and on the date indicated.
| Signature | Title |
|
/s/ Fleetwood Grobler |
Executive
Director (President and Chief Executive Officer) |
September 22, 2021 |
| Fleetwood Grobler | ||
|
/s/ Paul Victor |
Executive
Director (Chief Financial Officer) (Principal Financial Officer) |
September 22, 2021 |
| Paul Victor | ||
|
/s/ Feroza Syed |
Senior
Vice President: Financial Controlling and Governance (Principal Accounting Officer) |
September 22, 2021 |
| Feroza Syed | ||
|
/s/ Vuyo Kahla |
Executive Director |
September 22, 2021 |
| Vuyo Kahla | ||
|
/s/ Katherine Harper |
Independent Non-Executive Director |
September 22, 2021 |
| Katherine Harper | ||
|
/s/ Sipho Nkosi |
Independent Non-Executive Director |
September 22, 2021 |
| Sipho Nkosi | ||
|
/s/ Manual Cuambe |
Independent Non-Executive Director |
September 22, 2021 |
| Manual Cuambe |
| II-6 |
|
/s/ Muriel Dube |
Independent Non-Executive Director |
September 22, 2021 |
| Muriel Dube | ||
|
/s/ Martina Flöel |
Independent Non-Executive Director |
September 22, 2021 |
| Martina Flöel | ||
|
/s/ Beatrix Kennealy |
Independent Non-Executive Director |
September 22, 2021 |
| Beatrix Kennealy | ||
|
/s/ Nomgando Matyumza |
Independent Non-Executive Director |
September 22, 2021 |
| Nomgando Matyumza | ||
|
/s/ Moses Mkhize |
Independent Non-Executive Director |
September 22, 2021 |
| Moses Mkhize | ||
|
/s/ Mpho Nkeli |
Independent Non-Executive Director |
September 22, 2021 |
| Mpho Nkeli | ||
|
/s/ Peter Robertson |
Independent Non-Executive Director |
September 22, 2021 |
| Peter Robertson | ||
|
/s/ Stephen Westwell |
Independent Non-Executive Director |
September 22, 2021 |
| Stephen Westwell | ||
|
/s/ Stanley Subramoney |
Independent Non-Executive Director |
September 22, 2021 |
| Stanley Subramoney | ||
|
/s/ Jennifer Gallagher |
Authorized Representative in the United States |
September 22, 2021 |
| Jennifer Gallagher |
| II-7 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant, Sasol Financing USA LLC, a limited liability company organized and existing under the laws of the State of Delaware, certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form F-3 and has duly caused this Form F-3 registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Houston, Texas on the 22 day of September, 2021.
| SASOL FINANCING USA LLC | ||
| By: | /s/ Paul Victor | |
| Name: Paul Victor | ||
| Title: Authorized Signatory | ||
Each of the undersigned do hereby constitute and appoint Paul Victor his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, in his or her name, place and stead, in any and all capacities (including his or her capacity as a director and/or officer of the registrant), to sign any and all amendments and post-effective amendments and supplements to this registration statement, and including any registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, and to file the same, with all exhibits thereto and other documents in connection therewith, with the SEC, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Form F-3 registration statement has been signed by the following persons in the capacities and on the date indicated.
| Signature | Title |
|
/s/ Frederick Colin Meyer |
Director
and Chairman |
September 22, 2021 |
| Frederick Colin Meyer | ||
|
/s/ Eric Stouder |
Director (Principal Executive Officer) |
September 22, 2021 |
| Eric Stouder | ||
|
/s/ Nina Stofberg |
Director (Principal Financial Officer and Principal Accounting Officer) |
September 22, 2021 |
| Nina Stofberg |
| II-8 |
EXHIBITS
_________
| * | To be filed on a Form 6-K depending on the nature of the offering, if any, pursuant to this registration statement. |
II-9
Exhibit 4.1
SASOL FINANCING USA LLC
as Issuer
SASOL LIMITED
as Guarantor
WILMINGTON SAVINGS FUND SOCIETY, FSB
as Trustee
_______________________
Indenture
Dated as of [•]
_______________________
SASOL FINANCING USA LLC
as Issuer
AND
SASOL LIMITED
as Guarantor
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of November 14, 2012
| Trust Indenture Act Section |
Indenture Section | |
| § 310(a)(1) | 607(a) | |
| (a)(2) | 607(a) | |
| (b) | 608 | |
| § 312(c) | 701 | |
| § 314(a) | 703 | |
| (a)(4) | 1004 | |
| (c)(1) | 102 | |
| (c)(2) | 102 | |
| (e) | 102 | |
| § 315(b) | 601 | |
| § 316(a)(last | ||
| sentence) | 101 (“Outstanding”) | |
| (a)(1)(A) | 502, 512 | |
| (a)(1)(B) | 513 | |
| (b) | 508 | |
| (c) | 104(e) | |
| § 317(a)(1) | 503 | |
| (a)(2) | 504 | |
| (b) | 1003 | |
| § 318(a) | 111 |
| ___________________________ |
| Note: | This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. |
TABLE OF CONTENTS
Page
| PARTIES | 1 |
| RECITALS OF THE COMPANY | 1 |
| Article One DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | |
| SECTION 101. Definitions | 1 |
| “Act” | 2 |
| “Additional Amounts” | 2 |
| “Affiliate” | 2 |
| “Attributable Debt” | 2 |
| “Authenticating Agent” | 3 |
| “Authorized Newspaper” | 3 |
| “Board of Directors” | 3 |
| “Board Resolution” | 3 |
| “Business Day” | 3 |
| “Clearstream” | 3 |
| “Commission” | 3 |
| “Common Depositary” | 3 |
| “Company” | 3 |
| “Company Request” or “Company Order” | 3 |
| “Consolidated Net Tangible Assets” | 3 |
| “Conversion Date” | 4 |
| “Conversion Event” | 4 |
| “Corporate Trust Office” | 4 |
| “corporation” | 4 |
| “Currency” | 4 |
| “Debt” | 4 |
| “Default” | 4 |
| “Defaulted Interest” | 4 |
| “Depositary” | 4 |
| “Dollar” or “$” | 5 |
| “Dollar Equivalent of the Currency Unit” | 5 |
| “Dollar Equivalent of the Foreign Currency” | 5 |
| “Election Date” | 5 |
| “Euro” | 5 |
| “Euroclear” | 5 |
| “Event of Default” | 5 |
| Note: | This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. |
ii
| “Exchange Date” | 5 |
| “Exchange Rate Agent” | 5 |
| “Exchange Rate Officer’s Certificate” | 5 |
| “Federal Bankruptcy Code” | 5 |
| “Foreign Currency” | 5 |
| “Government Obligations” | 5 |
| “Guarantee” | 6 |
| “Guarantor” | 6 |
| “Guarantor Request” and “Guarantor Order” | 6 |
| “Holder” | 6 |
| “Indenture” | 6 |
| “Indexed Security” | 6 |
| “interest” | 6 |
| “Interest Payment Date” | 6 |
| “Lien” | 7 |
| “Margin Stock” | 7 |
| “Market Exchange Rate” | 7 |
| “Maturity” | 7 |
| “Officer’s Certificate” | 7 |
| “Opinion of Counsel” | 7 |
| “Original Issue Discount Security” | 7 |
| “Outstanding” | 8 |
| “Paying Agent” | 9 |
| “Person” | 9 |
| “Place of Payment” | 9 |
| “Predecessor Security” | 9 |
| “Principal Property” | 9 |
| “Project Finance Indebtedness” | 9 |
| “Redemption Date” | 10 |
| “Redemption Price” | 10 |
| “Regular Record Date” | 10 |
| “Repayment Date” | 10 |
| “Repayment Price” | 10 |
| “Responsible Officer” | 10 |
| “Restricted Securities” | 10 |
| “Restricted Subsidiary” | 10 |
| “Securities” | 10 |
| “Security Register” and “Security Registrar” | 11 |
| “Special Record Date” | 11 |
| “Stated Maturity” | 11 |
| “Subsidiary” | 11 |
| “Taxing Jurisdiction” | 11 |
| “Trust Indenture Act” or “TIA” | 11 |
| “Trustee” | 11 |
| “United States” | 11 |
| “United States person” | 11 |
| “Valuation Date” | 11 |
| “Voting Stock” | 11 |
| “Yield to Maturity” | 12 |
| SECTION 102. Compliance Certificates and Opinions | 12 |
iii
| SECTION 103. Form of Documents Delivered to Trustee | 12 |
| SECTION 104. Acts of Holders | 13 |
| SECTION 105. Notices, etc. to Trustee, the Company and the Guarantor | 14 |
| SECTION 106. Notice to Holders; Waiver | 15 |
| SECTION 107. Effect of Headings and Table of Contents | 16 |
| SECTION 108. Successors and Assigns | 16 |
| SECTION 109. Separability Clause | 16 |
| SECTION 110. Benefits of Indenture | 16 |
| SECTION 111. Governing Law | 16 |
| SECTION 112. Legal Holidays | 16 |
| SECTION 113. Submission to Jurisdiction; Appointment of Agent for Service of Process | 16 |
| SECTION 114. Waiver of Jury Trial | 17 |
| SECTION 115. Force Majeure | 17 |
| SECTION 116. USA PATRIOT Act Section 326 Customer Identification Program | 17 |
| Article Two SECURITY FORMS | |
| SECTION 201. Forms Generally | 18 |
| SECTION 202. Form of Trustee’s Certificate of Authentication | 19 |
| SECTION 203. Securities Issuable in Global Form | 19 |
| SECTION 204. Form of Guarantee | 20 |
| Article Three THE SECURITIES | |
| SECTION 301. Amount Unlimited; Issuable in Series | 21 |
| SECTION 302. Denominations | 25 |
| SECTION 303. Execution, Authentication, Delivery and Dating | 25 |
| SECTION 304. Temporary Securities | 27 |
| SECTION 305. Registration, Registration of Transfer and Exchange | 28 |
| SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities | 31 |
| SECTION 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset | 31 |
| SECTION 308. [Intentionally Omitted] | 34 |
| SECTION 309. Persons Deemed Owners | 34 |
| SECTION 310. Cancellation | 34 |
| SECTION 311. Computation of Interest | 35 |
| SECTION 312. Currency and Manner of Payments in Respect of Securities | 35 |
| SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent | 38 |
| SECTION 314. CUSIP Numbers | 38 |
| Article Four SATISFACTION AND DISCHARGE | |
| SECTION 401. Satisfaction and Discharge of Indenture | 39 |
| SECTION 402. Application of Trust Money | 40 |
| Article Five REMEDIES | |
| SECTION 501. Events of Default | 40 |
| SECTION 502. Acceleration of Maturity; Rescission and Annulment | 42 |
iv
| SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee | 43 |
| SECTION 504. Trustee May File Proofs of Claim | 43 |
| SECTION 505. Trustee May Enforce Claims Without Possession of Securities | 44 |
| SECTION 506. Application of Money Collected | 44 |
| SECTION 507. Limitation on Suits | 45 |
| SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest | 45 |
| SECTION 509. Restoration of Rights and Remedies | 45 |
| SECTION 510. Rights and Remedies Cumulative | 46 |
| SECTION 511. Delay or Omission Not Waiver | 46 |
| SECTION 512. Control by Holders | 46 |
| SECTION 513. Waiver of Past Defaults | 46 |
| SECTION 514. Waiver of Stay or Extension Laws | 47 |
| SECTION 515. Undertaking for Costs | 47 |
| SECTION 516. Statement by Officer as to Default | 47 |
| Article Six THE TRUSTEE | |
| SECTION 601. Notice of Defaults | 47 |
| SECTION 602. Certain Rights of Trustee | 48 |
| SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities | 51 |
| SECTION 604. May Hold Securities | 51 |
| SECTION 605. Money Held in Trust | 51 |
| SECTION 606. Compensation and Reimbursement | 51 |
| SECTION 607. Corporate Trustee Required; Eligibility | 52 |
| SECTION 608. Resignation and Removal; Appointment of Successor | 52 |
| SECTION 609. Acceptance of Appointment by Successor | 54 |
| SECTION 610. Merger, Conversion, Consolidation or Succession to Business | 55 |
| SECTION 611. Appointment of Authenticating Agent | 55 |
| Article Seven HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY | |
| SECTION 701. Disclosure of Names and Addresses of Holders | 57 |
| SECTION 702. Reports by Trustee | 57 |
| SECTION 703. Reports by the Company and the Guarantor | 57 |
| Article Eight CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER | |
| SECTION 801. Company or Guarantor May Consolidate, etc., Only on Certain Terms | 58 |
| SECTION 802. Successor Person Substituted | 59 |
| SECTION 803. [Intentionally Omitted] | 59 |
| Article Nine SUPPLEMENTAL INDENTURES | |
| SECTION 901. Supplemental Indentures Without Consent of Holders | 59 |
| SECTION 902. Supplemental Indentures With Consent of Holders | 60 |
| SECTION 903. Execution of Supplemental Indentures | 62 |
| SECTION 904. Effect of Supplemental Indentures | 62 |
| SECTION 905. Conformity with Trust Indenture Act | 62 |
v
| SECTION 906. Reference in Securities to Supplemental Indentures | 62 |
| Article Ten COVENANTS | |
| SECTION 1001. Payment of Principal, Premium, if any, and Interest | 62 |
| SECTION 1002. Maintenance of Office or Agency | 63 |
| SECTION 1003. Money for Securities Payments to Be Held in Trust | 64 |
| SECTION 1004. Statement as to Compliance | 65 |
| SECTION 1005. Additional Amounts | 65 |
| SECTION 1006. Limitation on Liens | 67 |
| SECTION 1007. Limitation on Sale and Leaseback Transactions | 69 |
| SECTION 1008. Waiver of Certain Covenants | 71 |
| SECTION 1009. Calculation of Original Issue Discount | 71 |
| Article Eleven REDEMPTION OF SECURITIES | |
| SECTION 1101. Applicability of Article | 71 |
| SECTION 1102. Election to Redeem; Notice to Trustee | 71 |
| SECTION 1103. Selection by Trustee of Securities to Be Redeemed | 72 |
| SECTION 1104. Notice of Redemption | 72 |
| SECTION 1105. Deposit of Redemption Price | 73 |
| SECTION 1106. Securities Payable on Redemption Date | 73 |
| SECTION 1107. Securities Redeemed in Part | 74 |
| SECTION 1108. Optional Redemption Due to Changes in Tax Treatment | 74 |
| Article Twelve SINKING FUNDS | |
| SECTION 1201. Applicability of Article | 75 |
| SECTION 1202. Satisfaction of Sinking Fund Payments with Securities | 75 |
| SECTION 1203. Redemption of Securities for Sinking Fund | 75 |
| Article Thirteen REPAYMENT AT OPTION OF HOLDERS | |
| SECTION 1301. Applicability of Article | 76 |
| SECTION 1302. Repayment of Securities | 76 |
| SECTION 1303. Exercise of Option | 76 |
| SECTION 1304. When Securities Presented for Repayment Become Due and Payable | 77 |
| SECTION 1305. Securities Repaid in Part | 77 |
| Article Fourteen DEFEASANCE AND COVENANT DEFEASANCE | |
| SECTION 1401. Applicability of Article; Company’s and Guarantor’s Option to Effect Defeasance or Covenant Defeasance | 78 |
| SECTION 1402. Defeasance and Discharge | 78 |
| SECTION 1403. Covenant Defeasance | 78 |
| SECTION 1404. Conditions to Defeasance or Covenant Defeasance | 79 |
vi
| SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions | 80 |
| Article Fifteen MEETINGS OF HOLDERS OF SECURITIES | |
| [Intentionally omitted] | 81 |
| Article Sixteen GUARANTEE OF SECURITIES | |
| SECTION 1601. Guarantee | 81 |
| SECTION 1602. Execution of Guarantee | 83 |
vii
| TESTIMONIUM | 1 |
| SIGNATURES AND SEALS | 1 |
| FORMS OF CERTIFICATION | EXHIBIT A |
1
INDENTURE, dated as of [•], among Sasol Financing USA LLC, a limited liability company duly organized and existing under the laws of the State of Delaware (herein called the “Company”), having its principal office at 12120 Wickchester Lane, Houston, Texas 77079, USA, Sasol Limited, a public company with limited liability duly incorporated and existing under the laws of the Republic of South Africa (herein called the “Guarantor”), having its principal office at Sasol Place, 50 Katherine Street, Sandton 2196, South Africa, and Wilmington Savings Fund Society, FSB, as Trustee hereunder (herein called the “Trustee”).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the “Securities”), which may or may not be exchangeable for the Guarantor’s ordinary shares, to be issued in one or more series, unlimited as to principal amount, to bear such rates of interest, to mature at such times and to have such other provisions as shall be fixed as hereinafter provided.
The Guarantor has duly authorized the execution and delivery of this Indenture and deems it appropriate from time to time to issue its guaranty of the Securities on the terms herein provided.
This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.
The guarantee provided pursuant to Sections 204 and 1601 of this Indenture is subject to South African Reserve Bank approval.
All things necessary to make this Indenture a valid agreement of the parties hereto, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:
Article
One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
2
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with International Financial Reporting Standards, and, except as otherwise herein expressly provided, the term “International Financial Reporting Standards” with respect to any computation required or permitted hereunder shall mean such accounting standards as shall be applicable at the date of such computation; and
(4) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, are defined in that Article.
“Act”, when used with respect to any Holder, has the meaning specified in Section 104.
“Additional Amounts” has the meaning specified in Section 1005.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Attributable Debt” means, as to any particular lease in a sale and leaseback transaction (as defined in Section 1007), synthetic lease or other finance-type lease under which any Person is at the time liable for a term of more than 12 months (but, for the sake of clarity, excluding any operating lease and lease entered into for the bona fide purpose of conducting mining, exploration or other operations), at any date as of which the amount thereof is to be determined, the total net amount of rent required to be paid by such Person under such lease during the remaining term thereof (excluding any subsequent renewal or other extension options held by the lessee), discounted from the respective due dates thereof to such date at the rate of interest per annum implicit in the terms of such lease (as determined by any two directors, or any director and secretary, of the Guarantor), compounded monthly. The net amount of rent required to be paid under any such lease for any such period shall be the aggregate amount of the rent payable by the lessee with respect to such period after excluding amounts required to be paid on account of maintenance and repairs, services, insurance, taxes, assessments, water rates and similar charges and contingent rents (such as those based on sales). In the case of any lease which is terminable by the lessee upon the payment of a penalty, such net amount of rent shall include the lesser of (i) the total discounted net amount of rent required to be paid from the later of the first date upon which such lease may be so terminated or the date of the determination of such net amount of rent, as the case may be, and (ii) the amount of such penalty (in which event no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated).
3
“Authenticating Agent” means any Person appointed by the Trustee to act on behalf of the Trustee pursuant to Section 611 to authenticate Securities.
“Authorized Newspaper” means a newspaper, in the English language or in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in each place in connection with which the term is used or in the financial community of each such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day.
“Board of Directors” means, as the context may require, (1) with respect to the Company, either the Board of Directors of the Company or any committee of such Board of Directors duly authorized to act hereunder and (2) with respect to the Guarantor, either the Board of Directors of the Guarantor or any committee of such Board of Directors duly authorized to act hereunder.
“Board Resolution” means a copy of a resolution certified by any director of the Company, or any director of the Guarantor, as the case may be, to have been duly adopted by its Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day”, when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means, unless otherwise specified with respect to any Securities pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which the Corporate Trust Office or banking institutions in that Place of Payment or other location are authorized or obligated by law or executive order to close.
“Clearstream” means Clearstream Banking, société anonyme, its nominee or any successor.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Common Depositary” has the meaning specified in Section 304.
“Company” means the Person named as the “Company” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” or “Company Order” means a written request or order signed in the name of the Company by any director of the Company, and delivered to the Trustee.
4
“Consolidated Net Tangible Assets” means the total amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (i) all current liabilities (excluding any current liabilities which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed and excluding current maturities of long-term indebtedness and capital lease obligations) and (ii) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set forth on the most recent balance sheet of the Guarantor and its consolidated Subsidiaries (but, in any event, as of a date within 150 days of the date of determination) prepared in accordance with International Financial Reporting Standards and expressed in Dollars.
“Conversion Date” has the meaning specified in Section 312(d).
“Conversion Event” means the cessation of use of (i) a Foreign Currency both by the government of the country which issued such Currency and by a central bank or other public institution of or within the international banking community for the settlement of transactions, (ii) the euro both within the European Union and for the settlement of transactions by public institutions of or within the European Union or (iii) any currency unit (or composite currency) other than the euro for the purposes for which it was established.
“Corporate Trust Office” means the corporate trust office of the Trustee, at which at any particular time its corporate trust business shall be administered, which office on the date of execution of this Indenture is located at Wilmington Savings Fund Society, FSB, 500 Delaware Avenue, Wilmington, Delaware 19801, United States, Attention: Global Capital Markets or such other address as the Trustee may designate from time to time by notice to the Holders, the Company and the Guarantor, except that with respect to presentation of Securities for payment or for registration of transfer or exchange, such term shall mean the office or agency of the Trustee at which, at any particular time, its corporate trust business shall be conducted.
“corporation” includes corporations, associations, companies and business trusts.
“Currency” means any currency or currencies, composite currency or currency unit or currency units, including, without limitation, the euro, issued by the government of one or more countries or by any recognized confederation or association of such governments.
“Debt” means notes, bonds, debentures or other similar evidences of indebtedness for money borrowed.
“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Defaulted Interest” has the meaning specified in Section 307.
“Depositary” means the clearing agency registered under the Securities Exchange Act of 1934, as amended, that is designated to act as the depositary with respect to any Securities issued in global form, and unless otherwise provided in Section 301 with respect to any series of Securities, The Depository Trust Company shall be the initial Depositary for any series of Securities, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture and, thereafter, “Depositary” shall mean or include such successor.
5
“Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts.
“Dollar Equivalent of the Currency Unit” has the meaning specified in Section 312(g).
“Dollar Equivalent of the Foreign Currency” has the meaning specified in Section 312(f).
“Election Date” has the meaning specified in Section 312(h).
“Euro” means the lawful currency of the member states of the European Union that adopt the single currency in accordance with the Treaty establishing the European Community, as amended by the Treaty on European Union.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System (or any successor securities clearing system).
“Event of Default” has the meaning specified in Section 501.
“Exchange Date” has the meaning specified in Section 304.
“Exchange Rate Agent” means, with respect to Securities of or within any series, unless otherwise specified with respect to any Securities pursuant to Section 301, a New York Clearing House bank, designated pursuant to Section 301 or Section 313.
“Exchange Rate Officer’s Certificate” means a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if any) and interest, if any (on an aggregate basis and on the basis of a Security having the lowest denomination principal amount determined in accordance with Section 302 in the relevant Currency), payable with respect to a Security of any series on the basis of such Market Exchange Rate, sent (in the case of a telex) or signed (in the case of a certificate) by any director of the Company or any director of the Guarantor, as applicable.
“Federal Bankruptcy Code” means the Bankruptcy Act of Title 11 of the United States Code, as amended from time to time.
“Foreign Currency” means any Currency other than Currency of the United States.
“Government Obligations” means, unless otherwise specified with respect to any series of Securities pursuant to Section 301, securities which are (i) direct obligations of the government which issued the Currency in which the Securities of a particular series are payable or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the government which issued the Currency in which the Securities of such series are payable, the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith and credit obligations of such government payable in such Currency and are not callable or redeemable at the option of the issuer thereof and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest or principal of the Government Obligation evidenced by such depository receipt.
6
“Guarantee” means the unconditional guarantee by the Guarantor of any Security of any series authenticated and delivered pursuant to this Indenture either (i) if specified, as contemplated by Section 301, to be applicable to Securities of such series and not endorsed on such Securities pursuant to Article Sixteen hereof, or (ii) in all other cases, endorsed on such Security.
“Guarantor” means the Person named as the “Guarantor” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantor” shall mean such successor Person.
“Guarantor Request” and “Guarantor Order” mean, respectively, a written request or order signed in the name of the Guarantor by any director of the Guarantor, and delivered to the Trustee.
“Holder” means the Person in whose name a Security is registered in the Security Register.
“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, and shall include the terms of particular series of Securities established as contemplated by Section 301; provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities for which such Person is Trustee established as contemplated by Section 301, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person, as such Trustee, was not a party.
“Indexed Security” means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.
“interest”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity at the rate prescribed in such Original Issue Discount Security.
“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
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“Lien” means any pledge, mortgage, lien, charge, encumbrance or security interest.
“Margin Stock” has the meaning specified in Regulation U of the Board of Governors of the U.S. Federal Reserve System.
“Market Exchange Rate” means, unless otherwise specified with respect to any Securities pursuant to Section 301, (i) for any conversion involving a currency unit on the one hand and Dollars or any Foreign Currency on the other, the exchange rate between the relevant currency unit and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 301 for the Securities of the relevant series, (ii) for any conversion of Dollars into any Foreign Currency, the noon (New York City time) buying rate for such Foreign Currency for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York and (iii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in the relevant market at which, in accordance with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased with the Foreign Currency from which conversion is being made from major banks located in either New York City, London or any other principal market for Dollars or such purchased Foreign Currency, in each case determined by the Exchange Rate Agent. Unless otherwise specified with respect to any Securities pursuant to Section 301, in the event of the unavailability of any of the exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in New York City, London or another principal market for the Currency in question, or such other quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is more than one market for dealing in any Currency by reason of foreign exchange regulations or otherwise, the market to be used in respect of such Currency shall be that upon which a non-resident issuer of securities designated in such Currency would purchase such Currency in order to make payments in respect of such securities.
“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption, notice of option to elect repayment or otherwise.
“Officer’s Certificate” means a certificate signed by any director of the Company or by any director of the Guarantor, as applicable, that complies with the requirements of Section 314(e) of the Trust Indenture Act and is delivered to the Trustee.
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company or the Guarantor or who may be an employee of or other counsel for the Company or the Guarantor.
“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
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“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or Security Registrar or delivered to the Trustee or Security Registrar for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption or repayment at the option of the Holder money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company or the Guarantor) in trust or set aside and segregated in trust by the Company or the Guarantor (if the Company shall act as its own, or authorize the Guarantor to act as, Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402 and 1403, with respect to which the Company or the Guarantor has effected defeasance and/or covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose of making the calculations required by TIA Section 313, (i) the principal amount of an Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration of the maturity thereof pursuant to Section 502, (ii) the principal amount of any Security denominated in a Foreign Currency that may be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date such Security is originally issued by the Company as set forth in an Exchange Rate Officer’s Certificate delivered to the Trustee, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent as of such date of original issuance of the amount determined as provided in clause (i) above) of such Security, (iii) the principal amount of any Indexed Security that may be counted in making such determination or calculation and that shall be deemed outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided with respect to such Security pursuant to Section 301, and (iv) Securities owned by the Company or the Guarantor or any other obligor upon the Securities or any Affiliate of the Company or the Guarantor or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or the Guarantor or any other obligor upon the Securities or any Affiliate of the Company or the Guarantor or such other obligor.
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“Paying Agent” means any Person (including the Company acting as Paying Agent) authorized by the Company to pay the principal of (or premium, if any) or interest, if any, on any Securities on behalf of the Company.
“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment” means, when used with respect to the Securities of or within any series, the place or places where the principal of (and premium, if any) and interest, if any, on such Securities are payable as specified as contemplated by Sections 301 and 1002.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Principal Property” means (a) oil or gas producing property (including leases, rights or other authorizations to conduct operations over any producing property), (b) any refining or manufacturing plant, (c) any mine, mineral deposit or processing plant, or (d) any building, pipeline, structure, dam or other facility, together with land upon which it is erected and fixtures comprising a part thereof, in each case the net book value of which on the date as of which the determination is being made exceeds, with respect to a series of Securities, a certain percentage, set forth in the Board Resolution, Officer’s Certificate or supplemental indenture establishing such series, of Consolidated Net Tangible Assets; provided, that Principal Property shall not include (a) any property, mine, plant or facility which, in the opinion of the Board of Directors of the Guarantor, is not of material importance to overall business conducted by the Guarantor and the Restricted Subsidiaries as an entirety or (b) any portion of a particular property, mine, plant or facility which, in the opinion of the Board of Directors of the Guarantor is not of material importance to the rest of such property, mine, plant or facility.
“Project Finance Indebtedness” means any indebtedness incurred in relation to any asset for the purposes of financing the whole or any part of the acquisition, creation, construction, expansion, operation, improvement or development of such asset where the financial institution(s) or other persons to whom such indebtedness is owed (and any trustees or other agents therefor) has or have recourse to (i) the applicable project borrower (where such project borrower is formed solely or principally for the purpose of the relevant project) and any or all of its rights and assets and/or (ii) such asset (or any derivative asset thereof) but, in either case, does not or do not have recourse to the Guarantor or any Subsidiary other than in respect of (a) the Guarantor or such Subsidiary’s interests in the equity or indebtedness of the applicable project borrower or the interests of the Guarantor or any other Subsidiary in the equity or indebtedness of any Subsidiary that holds, directly or indirectly, interests in the equity or indebtedness of the applicable project borrower, (b) the rights of the applicable project borrower under any contract with the Guarantor or any other Subsidiary, (c) obligations of the Guarantor or such Subsidiary pursuant to completion or performance guarantees or price support, cost overrun support or other support obligations, in each case, in connection with the relevant project or (d) claims for indemnity or damages arising from breach of representations or covenants made by the Guarantor or such Subsidiary to such financial institution or other person.
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“Redemption Date”, when used with respect to any Security to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture. The Trustee shall have no responsibility to verify any calculation of the Redemption Price.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of or within any series means the date specified for that purpose as contemplated by Section 301.
“Repayment Date” means, when used with respect to any Security to be repaid at the option of the Holder, the date fixed for such repayment pursuant to this Indenture.
“Repayment Price” means, when used with respect to any Security to be repaid at the option of the Holder, the price at which it is to be repaid pursuant to this Indenture.
“Responsible Officer”, when used with respect to the Trustee, means any officer of the Trustee with direct responsibility for the administration of this Indenture, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Restricted Securities” has the meaning specified in Section 1006.
“Restricted Subsidiary” means any Subsidiary wholly owned by the Guarantor which owns a Principal Property and, with respect to a series of Securities, any other Subsidiary designated as a “Restricted Subsidiary” in the Board Resolution, Officer’s Certificate or supplemental indenture establishing such series; provided, that Restricted Subsidiary shall not include any Subsidiary the primary business of which consists of financing operations in connection with leasing and conditional sales transactions on behalf of the Company, the Guarantor and their Subsidiaries, and/or purchasing accounts receivable and/or making loans secured by accounts receivable or inventory, or which is otherwise primarily engaged in the business of a finance company. In the event that there shall be at any time a question as to whether a Subsidiary is described in the foregoing clause (a) or (b) or an exception described herein, such matter shall be determined for all purposes of this Indenture by a Board Resolution.
“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture; provided, however, that if at any time there is more than one Person acting as Trustee under this Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall have the meaning stated in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee.
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“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.
“Special Record Date” for the payment of any Defaulted Interest on the Securities of or within any series means a date fixed by the Trustee pursuant to Section 307.
“Stated Maturity”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means any corporation of which at the time of determination the Guarantor, directly and/or indirectly through one or more Subsidiaries, owns more than 50% of the shares of Voting Stock.
“Taxing Jurisdiction” means the Republic of South Africa, the United States or any other jurisdiction where the Company or the Guarantor is organized or tax resident or in which the Company is treated as being engaged in a trade or business, or a jurisdiction in which any successor to the Company or the Guarantor is organized or tax resident.
“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed, except as provided in Section 905 provided, however, that in the event the Trust Indenture Act is amended after such date, “Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939 as so amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder; provided, however, that if at any time there is more than one such Person appointed as provided pursuant to a supplemental indenture, “Trustee” as used with respect to the Securities of any series shall mean only the Trustee with respect to Securities of that series.
“United States” means, unless otherwise specified with respect to any Securities pursuant to Section 301, the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
“United States person” means, unless otherwise specified with respect to any Securities pursuant to Section 301, an individual who is a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States, any state thereof or the District of Columbia or an estate or trust the income of which is subject to United States federal income taxation regardless of its source.
“Valuation Date” has the meaning specified in Section 312(c).
“Voting Stock” means stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of a corporation (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
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“Yield to Maturity” means the yield to maturity, computed at the time of issuance of a Security (or, if applicable, at the most recent redetermination of interest on such Security) and as set forth in such Security in accordance with generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or the Guarantor to the Trustee to take any action under any provision of this Indenture, the Company or the Guarantor, as the case may be, shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenant compliance with which constitutes a condition precedent) relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture (other than pursuant to Section 1004) shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such covenant or condition has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of a director or an officer of the Company or the Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such director or officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, a director or officer of the Company or the Guarantor, as the case may be, stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company and the Guarantor. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee, the Company and the Guarantor and any agent of the Trustee, the Company or the Guarantor, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.
(d) Intentionally Omitted.
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(e) If the Company or the Guarantor shall solicit from the Holders of Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company or the Guarantor, as the case may be, may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but neither the Company nor the Guarantor shall have any obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Company or the Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.
SECTION 105. Notices, etc. to Trustee, the Company and the Guarantor.
Any notice or communication shall be sufficiently given to the Trustee, the Company or the Guarantor, as the case may be, if written in English and (a) if delivered in person, when received or (b) if mailed by registered or overnight mail, the official postmark date or (c) as between the Company, the Guarantor or the Trustee, if sent by facsimile transmission, when transmission is confirmed, in each case addressed as follows:
if to the Company:
Sasol Financing USA LLC
12120 Wickchester Lane
Houston, Texas 77079
United States
Telephone No.: [•]
if to the Guarantor:
Sasol Limited
Sasol Place
50 Katherine Street
Sandton 2196
South Africa
Telephone No.: +27 10 344 5000
Attention: Senior Vice President: Legal, Intellectual Property & Regulatory Services
if to the Trustee:
Wilmington Savings Fund Society, FSB
500 Delaware Avenue
Wilmington, DE 19801
United States
Facsimile No.: [•]
Attention: Global Capital Markets
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The Trustee agrees to accept and act upon facsimile or email transmission of written instructions pursuant to this Indenture; provided, however, that (a) the party providing such written instructions, subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the Trustee in a timely manner, and (b) such originally executed instructions or directions shall be signed by an authorized representative of the party providing such instructions or directions.
The Company, the Guarantor or the Trustee by written notice to the other may designate additional or different addresses for subsequent notices or communications.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of Securities by the Company, the Guarantor or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders of Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders of Securities given as provided. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in regular mail service or by reason of any other cause, it shall be impractical to mail notice of any event to Holders of Securities when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be sufficient giving of such notice for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Notwithstanding any other provision of this Indenture or any Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption) to a Holder of a global Security (whether by mail or otherwise), such notice shall be sufficiently given when delivered to the Depositary for such Security (or its designee) pursuant to the customary procedures of such Depositary.
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SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company or the Guarantor shall bind their successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Security shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or any Guarantee, express or implied, shall give to any Person, other than the parties hereto, any Authenticating Agent, any Paying Agent, any Securities Registrar and their successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the law of the State of New York. This Indenture is subject to the provisions of the Trust Indenture Act that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, sinking fund payment date or Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of any Security other than a provision in the Securities of any series which specifically states that such provision shall apply in lieu of this Section), payment of principal (or premium, if any) or interest, if any, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date or sinking fund payment date, or at the Stated Maturity or Maturity; provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the case may be.
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SECTION 113. Submission to Jurisdiction; Appointment of Agent for Service of Process.
The Guarantor hereby appoints CT Corporation System acting through its office at 111 Eighth Avenue, New York, New York 10011 as its authorized agent (the “Authorized Agent”) upon which process may be served in any legal action or proceeding against it with respect to its obligations under this Indenture, the Securities of any series or the Guarantee, instituted in any federal or state court in the Borough of Manhattan, The City of New York by the Holder of any Security and the Guarantor agrees that service of process upon such Authorized Agent, together with written notice of said service to the Guarantor by the Person serving the same addressed as provided in Section 105, shall be deemed in every respect effective service of process upon it in any such legal action or proceeding. Each of the Company and the Guarantor hereby irrevocably submits to the non-exclusive jurisdiction of any such court in respect of any such legal action or proceeding and waives any objection it may have to the laying of the venue of any such legal action or proceeding. Such designation shall be irrevocable until all amounts in respect of the principal of and any premium and interest due and to become due on or in respect of all the Securities issued under this Indenture have been paid by the Company or the Guarantor, as the case may be, to the Trustee pursuant to the terms hereof, the Securities and the Guarantee. Notwithstanding the foregoing, the Guarantor reserves the right to appoint another Person, selected in its discretion, as a successor Authorized Agent, and upon acceptance of such consent to service of process by such a successor, the designation of the prior Authorized Agent shall terminate. The Guarantor shall give written notice to the Trustee and all Holders of the designation by it of a successor Authorized Agent. If for any reason CT Corporation System ceases to be able to act as the Authorized Agent, the Guarantor will appoint a successor Authorized Agent in accordance with the preceding sentence. The Guarantor further agrees to take any and all action, including the filing of any and all documents and instruments as may be necessary to continue such designation of such agent in full force and effect until this Indenture has been satisfied and discharged. Service of process upon the Authorized Agent addressed to it at the address set forth above, as such address may be changed by notice given by the Authorized Agent to the Trustee, together with written notice of such service mailed or delivered to the Guarantor shall be deemed, in every respect, effective service of process on the Guarantor.
SECTION 114. Waiver of Jury Trial
EACH OF THE COMPANY, THE GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 115. Force Majeure
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of god, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
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SECTION 116. USA PATRIOT Act Section 326 Customer Identification Program
The parties hereto acknowledge that in order to help the United States government fight the funding of terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA PATRIOT Act) all financial institutions are required to obtain, verify, record and update information that identifies each person establishing a relationship or opening an account. The parties to this Indenture agree that they will provide to the Trustee such information as it may request, from time to time, in order for the Trustee to satisfy the requirements of the USA PATRIOT Act, including but not limited to the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided.
Article
Two
SECURITY FORMS
SECTION 201. Forms Generally
The Securities of each series shall be in substantially the forms as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the directors and officers executing such Securities, as evidenced by their execution of the Securities. If the forms of Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by any director or secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities. Any portion of the text of any Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Security.
If Article Sixteen is to be applicable to Securities of any series, established as contemplated by Section 301, then Securities of each such series shall bear a Guarantee in substantially the form set forth in Section 204. For any other series of Securities, the Guarantee shall be endorsed on the Securities and shall be substantially in the form established by or pursuant to Board Resolutions of the Guarantor in accordance with Section 301 or one or more indentures supplemental hereto. Notwithstanding the foregoing, the Guarantee or the Guarantees to be endorsed on the Securities of any series may have such appropriate insertions, omissions, substitutions and other corrections from the forms thereof referred to above as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the directors or officers delivering the same, in each case as evidenced by such delivery.
The Trustee’s certificate of authentication on all Securities shall be in substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on steel-engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
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SECTION 202. Form of Trustee’s Certificate of Authentication.
Subject to Section 611, the Trustee’s certificate of authentication shall be in substantially the following form:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| WILMINGTON SAVINGS FUND SOCIETY, FSB | ||
| as Trustee | ||
| By | ||
| Authorized Signatory | ||
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as specified as contemplated by Section 301, then, notwithstanding clause (8) of Section 301, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon written instructions given by such Person or Persons as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company Order pursuant to Section 303 or Section 304 has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of the penultimate paragraph of Section 303 shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with written instructions (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of the penultimate paragraph of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified as contemplated by Section 301, payment of principal of (and premium, if any) and interest, if any, on any Security in permanent global form shall be made to the Person or Persons specified therein.
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Notwithstanding the provisions of Section 309 and except as provided in the preceding paragraph, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor and the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a permanent global Security, the Holder of such permanent global Security in registered form.
SECTION 204. Form of Guarantee.
The Guarantee afforded by Article Sixteen shall be endorsed on the Securities of any applicable series substantially as follows:
For value received, Sasol Limited, a corporation duly organized and existing under the laws of the Republic of South Africa (herein called the “Guarantor”, which term includes any successor Person under the Indenture (the “Indenture”) referred to in the Security on which this Guarantee is endorsed), has unconditionally guaranteed, pursuant to the terms of the Guarantee contained in Article Sixteen of the Indenture, the due and punctual payment of the principal (including any amount due in respect of original issue discount) of and any premium and interest on and Additional Amounts with respect to such Security, and the due and punctual payment of any sinking fund payments provided for pursuant to the terms of such Security, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder, in accordance with the terms of such Security and the Indenture.
All payments pursuant to this Guarantee shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of the Republic of South Africa, the United States or any other jurisdiction where the Company or any Guarantor is organized or tax resident or is treated as being engaged in a trade or business, or the jurisdiction in which any successor to the Company or the Guarantor is organized or tax resident, or any political subdivision or taxing authority thereof or therein, unless such taxes, duties, assessments or governmental charges are required by the Republic of South Africa, the United States or such other jurisdiction or any such subdivision or authority to be withheld or deducted. In that event, the Guarantor will pay such Additional Amounts as will result (after deduction of such taxes, duties, assessments or governmental charges and any additional taxes, duties, assessments or governmental charges payable in respect of such) in the payment to the Holder of the Security on which this Guarantee is endorsed of the amounts which would have been payable in respect of the Guarantee thereof had no such withholding or deduction been required, subject to certain exceptions as set forth in Article Ten of the Indenture.
The obligations of the Guarantor to the Holders of the Securities and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Sixteen of the Indenture, and reference is hereby made to such Article and Indenture for the precise terms of the Guarantee.
The Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this Guarantee is endorsed shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized signatories.
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Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Indenture.
IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed.
| Dated: | ||
| SASOL LIMITED | ||
| By | ||
| Name: | ||
| Title: | ||
Article
Three
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in one or more Board Resolutions or pursuant to authority granted by one or more Board Resolutions and, subject to Section 303, set forth in, or determined in the manner provided in, an Officer’s Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, any or all of the following, as applicable (each of which (except for the matters set forth in clauses (1), (2) and (17) below), if so provided, may be determined from time to time by the Company with respect to unissued Securities of the series and set forth in such Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall distinguish the Securities of the series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will be determined or extended, on which the principal of the Securities of the series is payable;
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(4) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue, or the method by which such date or dates shall be determined, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on any Security on any Interest Payment Date, or the method by which such date or dates shall be determined, and the basis upon which interest shall be calculated if other than on the basis of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to Wilmington, Delaware where the principal of (and premium, if any) and interest, if any, on Securities of the series shall be payable, where any Securities of the series may be surrendered for registration of transfer, where Securities of the series may be surrendered for exchange, where Securities of the series that are exchangeable may be surrendered for exchange, as applicable and, if different than the location specified in Section 106, the place or places where notices or demands to or upon the Company in respect of the Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at which, the Currency in which, and other terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay or purchase Securities of the series pursuant to any sinking fund or analogous provision or at the option of a Holder thereof, and the period or periods within which, the price or prices at which, the Currency in which, and other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $200,000 and any integral multiple of $1,000 in excess thereof, the denomination or denominations in which any Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502 or the method by which such portion shall be determined;
(11) if other than Dollars, the Currency in which payment of the principal of (or premium, if any) or interest, if any, on the Securities of the series shall be payable or in which the Securities of the series shall be denominated and the particular provisions applicable thereto in accordance with, in addition to or in lieu of any of the provisions of Section 312;
(12) whether the amount of payments of principal of (or premium, if any) or interest, if any, on the Securities of the series may be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or more Currencies, commodities, equity indices or other indices), and the manner in which such amounts shall be determined;
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(13) whether the principal of (or premium, if any) or interest, if any, on the Securities of the series are to be payable, at the election of the Company, the Guarantor or a Holder thereof, in a Currency other than that in which such Securities are denominated or stated to be payable, the period or periods within which (including the Election Date), and the terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the Currency in which such Securities are denominated or stated to be payable and the Currency in which such Securities are to be so payable, in each case in accordance with, in addition to or in lieu of any of the provisions of Section 312;
(14) the designation of the initial Exchange Rate Agent, if any;
(15) the applicability, if any, of Sections 1402 and/or 1403 to the Securities of the series and any provisions in modification of, in addition to or in lieu of any of the provisions of Article Fourteen that shall be applicable to the Securities of the series;
(16) provisions, if any, granting special rights to the Holders of Securities of the series, including any provisions requiring the Company to make offers to repurchase Securities, upon the occurrence of such events as may be specified;
(17) any deletions from, modifications of or additions to the Events of Default or covenants (including any deletions from, modifications of or additions to Section 1008) of the Company or the Guarantor, as the case may be, with respect to Securities of the series, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein;
(18) whether any Securities of the series are to be issuable initially in temporary global form and whether any Securities of the series are to be issuable in permanent global form and, if so, whether beneficial owners of interests in any such permanent global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 305, and the circumstances under which and the place or places where any such exchanges may be made and if Securities of the series are to be issuable in global form, the identity of any initial depository therefor;
(19) the date as of which any temporary global Security representing Outstanding Securities of the series shall be dated if other than the date of original issuance of the first Security of the series to be issued;
(20) the Person to whom any interest on any Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, the manner in which any interest payable on a temporary global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 304;
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(21) if Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and/or terms of such certificates, documents or conditions;
(22) if the Securities of the series are to be issued upon the exercise of warrants, the time, manner and place for such Securities to be authenticated and delivered;
(23) whether, under what circumstances and the Currency in which the Company or the Guarantor will pay Additional Amounts as contemplated by Section 1005 on the Securities of the series in respect of any tax, assessment or governmental charge and, if so, whether the Company or the Guarantor will have the option to redeem such Securities rather than pay such Additional Amounts (and the terms of any such option);
(24) if the Securities of the series are to be exchangeable for any securities of any Person (including the Guarantor), the terms and conditions upon which such Securities will be so exchangeable;
(25) if the Securities will be entitled to the benefit of the Guarantee afforded by Article Sixteen or, if not, the form of the Guarantee to be endorsed on the Securities;
(26) if the Securities of the series or the Guarantee therefor are to be subordinated to any other Debt, the terms and conditions of such subordination;
(27) the percentages applicable to each of (i) the definition of Principal Property, (ii) Section 1006 and (iii) Section 1007(a) for such Securities; and
(28) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to the series (which terms shall not be inconsistent with the requirements of the Trust Indenture Act or the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution (subject to Section 303) and set forth in such Officer’s Certificate or in any such indenture supplemental hereto. Not all Securities of any one series need be issued at the same time, and, unless otherwise provided, a series may be reopened without the consent of the Holders for issuances of additional Securities of such series; provided, however, that in the case that the outstanding or additional Securities of a series were or are offered for sale in the United States, such additional Securities that have the same CUSIP, ISIN, common code or other identifying numbers as the outstanding Securities of such series must be fungible with the outstanding Securities of such series for U.S. federal income tax purposes.
If any of the terms of the series are established by action taken pursuant to one or more Board Resolutions, such Board Resolutions shall be delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.
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SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 301. With respect to Securities of any series denominated in Dollars, in the absence of any such provisions, the Securities of such series, other than Securities issued in global form (which may be of any denomination), shall be issuable in denominations of $200,000 and any integral multiple of $1,000 in excess thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and the Guarantees to be noted or endorsed on the Securities shall be executed on behalf of the Company by any director of the Company, and on behalf of the Guarantor by any director of the Guarantor. The signature of any of these persons on the Securities and the Guarantees, as the case may be, may be the manual or facsimile signatures of the present or any future such director or officer and may be imprinted or otherwise reproduced on the Securities. If Article Sixteen is to be applicable to the Securities of any series, established as contemplated by Section 301, then the Guarantees noted or endorsed on the Securities of such series shall be executed as provided in Section 1602.
Securities or any Guarantee bearing the manual or facsimile signatures of individuals who were at any time the proper directors or officers of the Company or the Guarantor, as the case may be, shall bind the Company or the Guarantor, as the case may be, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or Guarantee or did not hold such offices at the date of such Securities or such Guarantee.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series, executed by the Company, having Guarantees noted or endorsed thereon executed by the Guarantor, to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities. If any Security shall be represented by a permanent global Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner’s interest therein upon original issuance of such Security or upon exchange of a portion of a temporary global Security shall be deemed to be delivery in connection with its original issuance of such beneficial owner’s interest in such permanent global Security. If not all the Securities of any series are to be issued at one time and if the Board Resolution, Officer’s Certificate or supplemental indenture establishing such series shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the issuance of such Securities and determining terms of particular Securities of such series such as interest rate, stated maturity, date of issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be given, and (subject to TIA Sections 315(a) through 315(d)) shall be fully protected in relying upon, an Opinion of Counsel stating:
(a) that the form or forms of such Securities and Guarantee have been established in conformity with the provisions of this Indenture;
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(b) that the terms of such Securities and Guarantee have been established in conformity with the provisions of this Indenture;
(c) that such Securities, together with the Guarantee thereof, when completed by appropriate insertions and executed and delivered by the Company and the Guarantor, as applicable, to the Trustee for authentication in accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute the legal, valid and binding obligations of the Company and the Guarantor, respectively, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights, to general equitable principles and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of such Securities; and
(d) all conditions precedent to be complied with on the part of the Company and the Guarantor in respect of the execution and delivery by the Company and the Guarantor, as applicable, of such Securities and the authentication of the Securities by the Trustee have been complied with.
Notwithstanding the provisions of Section 301 and of the preceding two paragraphs, if not all the Securities of any series are to be issued at one time, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to the preceding two paragraphs prior to or at the time of issuance of each Security, but such documents shall be delivered prior to or at the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate and deliver any such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security or Guarantee shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security and Guarantee have been duly authenticated and delivered hereunder and are entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 310 together with a written statement (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security, and the related Guarantee, shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture (including, if applicable, the Guarantee pursuant to Article Sixteen).
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The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute delivery of the Guarantee endorsed or noted thereon on behalf of the Guarantor. The Guarantor by its execution of this Indenture hereby authorizes the Company, in the name and on behalf of the Guarantor, to confirm the applicable Guarantee to the Holder of each Security authenticated and delivered hereunder by its execution and delivery of each such Security, with such Guarantee noted or endorsed thereon, authenticated and delivered by the Trustee. When delivered pursuant to the provisions of Section 303 hereof, only Guarantees endorsed or noted on the Securities shall bind the Guarantor, notwithstanding the fact that the Guarantee does not bear the signature of the Guarantor.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, the Guarantor may execute its Guarantee to be noted or endorsed on, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form, and with such appropriate insertions, omissions, substitutions and other variations as conclusively the directors or officers executing such Securities, or Guarantees or notations of the Guarantee pursuant to Article Sixteen, as applicable, may determine, as conclusively evidenced by their execution of such Securities or Guarantees or notations, as the case may be. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be exchanged in accordance with the provisions of the following paragraphs), if temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute, and the Guarantor shall execute the Guarantee noted or endorsed on, and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
If temporary Securities of any series are issued in global form, any such temporary global Security shall, unless otherwise provided therein, be delivered to the London office of a depositary or common depositary (the “Common Depositary”), for the benefit of Euroclear and Clearstream, for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary global Security (the “Exchange Date”), the Company shall deliver to the Trustee definitive Securities, in aggregate principal amount equal to the principal amount of such temporary global Security, executed by the Company and, as applicable, the Guarantor. On or after the Exchange Date such temporary global Security shall be surrendered by the Common Depositary to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge and the Trustee shall authenticate and deliver, in exchange for each portion of such temporary global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such temporary global Security to be exchanged.
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The definitive Securities to be delivered in exchange for any such temporary global Security shall be in registered form or permanent global registered form, or any combination thereof, as specified as contemplated by Section 301, and, if any combination thereof is so specified, as requested by the beneficial owner thereof; provided, however, that, unless otherwise specified in such temporary global Security, upon such presentation by the Common Depositary, such temporary global Security is accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary global Security held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream as to the portion of such temporary global Security held for its account then to be exchanged, each in the form set forth in Exhibit A-2 to this Indenture (or in such other form as may be established pursuant to Section 301).
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register for each series of Securities (the registers maintained in the Corporate Trust Office of the Trustee and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company or the Guarantor shall provide for the registration of Securities and of transfers of Securities. The Security Register shall be in written form or any other form capable of being converted into written form within a reasonable time. At all reasonable times, the Security Register shall be open to inspection by the Trustee. The Trustee is hereby initially appointed as security registrar (the “Security Registrar”) for the purpose of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the Guarantor shall execute the Guarantee noted or endorsed on, and the Trustee shall authenticate and deliver, in the name of the designated transferee, one or more new Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denomination and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Guarantor shall execute the Guarantee on, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 301, any permanent global Security shall be exchangeable only as provided in this paragraph. If any beneficial owner of an interest in a permanent global Security is entitled to exchange such interest for Securities of such series and of like tenor and principal amount of another authorized form and denomination, as specified as contemplated by Section 301 and provided that any applicable notice provided in the permanent global Security shall have been given, then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Company shall deliver to the Trustee definitive Securities in aggregate principal amount equal to the principal amount of such beneficial owner’s interest in such permanent global Security, executed by the Company and the Guarantor.
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On or after the earliest date on which such interests may be so exchanged, such permanent global Security shall be surrendered by the Common Depositary or such other depositary as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge, and the Trustee shall authenticate and deliver, in exchange for each portion of such permanent global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such permanent global Security to be exchanged which shall be in the form of Securities, as shall be specified by the beneficial owner thereof; provided, however, that no such exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities to be redeemed and ending on the relevant Redemption Date if the Security for which exchange is requested may be among those selected for redemption. If a Security is issued in exchange for any portion of a permanent global Security after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such permanent global Security is payable in accordance with the provisions of this Indenture.
The provisions of clauses (1), (2), (3) and (4) below shall apply only to global Securities:
(1) Each global Security authenticated under this Indenture shall be registered in the name of the depositary designated for such global Security or a nominee thereof and delivered to such depositary or a nominee thereof or custodian therefor, and each such global Security shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no global Security may be exchanged for Securities registered, and no transfer of a global Security in whole or in part may be registered, in the name of any Person other than the depositary for such global Security or a nominee thereof unless (A) such depositary (i) has notified the Company that it is unwilling or unable to continue as depositary for such global Security or (ii) has ceased to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and the Company does not appoint another institution to act as depositary within 120 days after the date of the notice described in clause (i) or the cessation described in clause (ii), as the case may be, (B) the Company notifies the Trustee that the Company desires to terminate such global Security, (C) there shall have occurred and be continuing an Event of Default with respect to such global Security or (D) there shall exist such other circumstances, if any, as have been specified for this purpose as contemplated by Section 301.
(3) Subject to clause (2) above, any exchange of a global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a global Security or any portion thereof shall be registered in such names as the depositary for such global Security shall direct.
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(4) Every Security authenticated and delivered upon registration or transfer of, or in exchange for or in lieu of, a global Security or any portion thereof, whether pursuant to this Section, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in the form of, and shall be a global Security, unless such Security is registered in the name of a Person other than the depositary for such global Security or a nominee thereof.
All Securities issued upon any registration of transfer or exchange of Securities, and the Guarantees, shall be the valid obligations of the Company and the Guarantor, respectively, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities, and the Guarantees thereof, surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
Whenever authenticating a security, the Trustee shall be entitled to request and rely upon a Company Order to authenticate such Security.
Notwithstanding anything contained herein to the contrary, neither the Trustee nor the Security Registrar shall be responsible for ascertaining whether any transfer complies with the registration provisions of or exemptions from the Securities Act or applicable state securities laws.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company or the Guarantor, as the case may be, may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of that series under Section 1103 or 1203 and ending at the close of business on the day of the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part; provided that such Security shall be simultaneously surrendered for redemption, or (iv) to issue, register the transfer of or exchange any Security which has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.
Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by Euroclear, Clearstream or the Depositary.
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SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, together with, in proper cases, such security or indemnity as may be required by the Company, the Guarantor or the Trustee to save each of them or any agent of each of them harmless, the Company shall execute, the Guarantor shall execute the Guarantee noted or endorsed thereon, and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company, the Guarantor and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of each of them harmless, then, in the absence of notice to the Company, the Guarantor or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute, the Guarantor shall execute the Guarantee noted or endorsed thereon, and upon Company Order or a Guarantor Order the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, appertaining to such mutilated, destroyed, lost or stolen Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security, and the Guarantee thereon, shall constitute an original additional contractual obligation of the Company and the Guarantor, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series, if any, and the Guarantees duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset.
(a) Unless otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest, if any, on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest at the office or agency of the Company maintained for such purpose pursuant to Section 1002; provided, however, that each installment of interest, if any, on any Security may at the Company’s option be paid by (i) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to Section 309, to the address of such Person as it appears on the Security Register or (ii) on any global Security by wire transfer of immediately available funds to an account maintained by such Person.
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Unless otherwise provided as contemplated by Section 301, every permanent Security of any series that is issued in global form will provide that interest, if any, payable on any Interest Payment Date will be paid upon receipt of funds by the Trustee to each of (i) the Depositary and/or (ii) Euroclear and/or Clearstream with respect to that portion of such permanent Security of any series that is issued in global form held for its account by the Common Depositary, as the case may be, for the purpose of permitting each of the Depositary and/or Euroclear and Clearstream, as the case may be, to credit the interest, if any, received by it in respect of such permanent Security of any series issued in global form, to the accounts of the beneficial owners thereof.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such defaulted interest and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities of such series (such defaulted interest and, if applicable, interest thereon herein collectively called “Defaulted Interest”) may be paid by the Company or the Guarantor, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company or the Guarantor may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company or the Guarantor shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company or the Guarantor, as the case may be, shall deposit with the Trustee an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company and the Guarantor, as the case may be, of such Special Record Date and, in the name and at the expense of the Company or the Guarantor, as the case may be, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given in the manner provided in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose name the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
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(2) The Company or the Guarantor may make payment of any Defaulted Interest on the Securities of any series to the Holder in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company or the Guarantor, as the case may be, to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made applicable to any series of Securities pursuant to Section 301 (with such modifications, additions or substitutions as may be specified pursuant to such Section 301). The interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) on any Security of such series may be reset by the Company or the Guarantor, as the case may be, on the date or dates specified on the face of such Security (each an “Optional Reset Date”). The Company or the Guarantor, as the case may be, may exercise such option with respect to such Security by notifying the Trustee of such exercise at least 50 but not more than 60 days prior to an Optional Reset Date for such Note. Not later than 40 days prior to each Optional Reset Date, the Trustee at the written request of the Company shall transmit, in the manner provided for in Section 106, to the Holder of any such Security a notice (the “Reset Notice”) indicating whether the Company or the Guarantor, as the case may be, has elected to reset the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable), and if so (i) such new interest rate (or such new spread or spread multiplier, if applicable) and (ii) the provisions, if any, for redemption during the period from such Optional Reset Date to the next Optional Reset Date or if there is no such next Optional Reset Date, to the Stated Maturity Date of such Security (each such period a “Subsequent Interest Period”), including the date or dates on which or the period or periods during which and the price or prices at which such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the Optional Reset Date, the Company or the Guarantor, as the case may be, may, at its option, revoke the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) provided for in the Reset Notice and establish an interest rate (or a spread or spread multiplier used to calculate such interest rate, if applicable) that is higher than the interest rate (or the spread or spread multiplier, if applicable) provided for in the Reset Notice, for the Subsequent Interest Period by causing the Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate (or such higher spread or spread multiplier, if applicable) to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to which the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) is reset on an Optional Reset Date, and with respect to which the Holders of such Securities have not tendered such Securities for repayment (or have validly revoked any such tender) pursuant to the next succeeding paragraph, will bear such higher interest rate (or such higher spread or spread multiplier, if applicable).
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The Holder of any such Security will have the option to elect repayment by the Company of the principal of such Security on each Optional Reset Date at a price equal to the principal amount thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to such Optional Reset Date and except that, if the Holder has tendered any Security for repayment pursuant to the Reset Notice, the Holder may, by written notice to the Trustee, revoke such tender or repayment until the close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. [Intentionally Omitted].
SECTION 309. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 305 and 307) interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee shall be affected by notice to the contrary.
None of the Company, the Guarantor, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing herein shall prevent the Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any depositary, as a Holder, with respect to such global Security or impair, as between such depositary and owners of beneficial interests in such global Security, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such global Security.
SECTION 310. Cancellation.
All Securities surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange or for credit against any current or future sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities so delivered to the Trustee shall be promptly cancelled by it. The Company or the Guarantor may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company or the Guarantor may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company or the Guarantor has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee.
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If the Company or the Guarantor shall so acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures and, upon written request, certification of their cancellation delivered to the Company, unless by a Company Order or Guarantor Order the Company or the Guarantor shall direct that cancelled Securities be returned to it.
SECTION 311. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 with respect to any Securities, interest, if any, on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 312. Currency and Manner of Payments in Respect of Securities.
(a) Unless otherwise specified with respect to any Securities pursuant to Section 301, with respect to Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of which have not made the election provided for in paragraph (b) below, payment of the principal of (and premium, if any) and interest, if any, on any Security of such series will be made in the Currency in which such Security is payable. The provisions of this Section 312 may be modified or superseded with respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to Securities of any series that Holders shall have the option, subject to paragraphs (d) and (e) below, to receive payments of principal of (or premium, if any) or interest, if any, on such Securities in any of the Currencies which may be designated for such election by delivering to the Trustee a written election with signature guarantees and in the applicable form established pursuant to Section 301, not later than the close of business on the Election Date immediately preceding the applicable payment date. Any Holder of any such Security who shall not have delivered any such election to the Trustee not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant Currency as provided in Section 312(a). The Trustee shall notify the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal amount of Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the election referred to in paragraph (b) above has been provided for pursuant to Section 301, then, unless otherwise specified pursuant to Section 301, not later than the fourth Business Day after the Election Date for each payment date for Securities of any series, the Exchange Rate Agent will deliver to the Company and the Guarantor a written notice specifying, in the Currency in which Securities of such series are payable, the respective aggregate amounts of principal of (and premium, if any) and interest, if any, on the Securities to be paid on such payment date, specifying the amounts in such Currency so payable in respect of the Securities as to which the Holders of Securities of such series shall have elected to be paid in another Currency as provided in paragraph (b) above.
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If the election referred to in paragraph (b) above has been provided for pursuant to Section 301 and if at least one Holder has made such election, then, unless otherwise specified pursuant to Section 301, on the second Business Day preceding such payment date the Company and the Guarantor will deliver to the Trustee for such series of Securities an Exchange Rate Officer’s Certificate in respect of the Dollar or Foreign Currency payments to be made on such payment date. Unless otherwise specified pursuant to Section 301, the Dollar or Foreign Currency amount receivable by Holders of Securities who have elected payment in a Currency as provided in paragraph (b) above shall be determined by the Company or the Guarantor on the basis of the applicable Market Exchange Rate in effect on the third Business Day (the “Valuation Date”) immediately preceding each payment date, and such determination shall be conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in which any of the Securities are denominated or payable other than pursuant to an election provided for pursuant to paragraph (b) above, then with respect to each date for the payment of principal of (and premium, if any) and interest, if any, on the applicable Securities denominated or payable in such Foreign Currency occurring after the last date on which such Foreign Currency was used (the “Conversion Date”), the Dollar shall be the Currency of payment for use on each such payment date. Unless otherwise specified pursuant to Section 301, the Dollar amount to be paid by the Company or the Guarantor to the Trustee and by the Trustee or any Paying Agent to the Holders of such Securities with respect to such payment date shall be, in the case of a Foreign Currency other than a currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of the Currency Unit, in each case as determined by the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder of a Security denominated in any Currency shall have elected to be paid in another Currency as provided in paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency, such Holder shall receive payment in the Currency in which payment would have been made in the absence of such election; and if a Conversion Event occurs with respect to the Currency in which payment would have been made in the absence of such election, such Holder shall receive payment in Dollars as provided in paragraph (d) above.
(f) The “Dollar Equivalent of the Foreign Currency” shall be determined by the Exchange Rate Agent and shall be obtained for each subsequent payment date by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date.
(g) The “Dollar Equivalent of the Currency Unit” shall be determined by the Exchange Rate Agent and subject to the provisions of paragraph (h) below shall be the sum of each amount obtained by converting the Specified Amount of each Component Currency into Dollars at the Market Exchange Rate for such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312 the following terms shall have the following meanings:
A “Component Currency” shall mean any Currency which, on the Conversion Date, was a component currency of the relevant currency unit, including, but not limited to, the euro.
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A “Specified Amount” of a Component Currency shall mean the number of units of such Component Currency or fractions thereof which were represented in the relevant currency unit, including, but not limited to, the euro, on the Conversion Date. If after the Conversion Date the official unit of any Component Currency is altered by way of combination or subdivision, the Specified Amount of such Component Currency shall be divided or multiplied in the same proportion. If after the Conversion Date two or more Component Currencies are consolidated into a single currency, the respective Specified Amounts of such Component Currencies shall be replaced by an amount in such single Currency equal to the sum of the respective Specified Amounts of such consolidated Component Currencies expressed in such single Currency, and such amount shall thereafter be a Specified Amount and such single Currency shall thereafter be a Component Currency. If after the Conversion Date any Component Currency shall be divided into two or more Currencies, the Specified Amount of such Component Currency shall be replaced by amounts of such two or more Currencies, having an aggregate Dollar Equivalent value at the Market Exchange Rate on the date of such replacement equal to the Dollar Equivalent value of the Specified Amount of such former Component Currency at the Market Exchange Rate immediately before such division and such amounts shall thereafter be Specified Amounts and such currencies shall thereafter be Component Currencies. If, after the Conversion Date of the relevant currency unit, including, but not limited to, the euro, a Conversion Event (other than any event referred to above in this definition of “Specified Amount”) occurs with respect to any Component Currency of such currency unit and is continuing on the applicable Valuation Date, the Specified Amount of such Component Currency shall, for purposes of calculating the Dollar Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in effect on the Conversion Date of such Component Currency.
“Election Date” shall mean the date for any series of Securities as specified pursuant to clause (13) of Section 301 by which the written election referred to in paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company, the Guarantor, the Trustee and all Holders of such Securities denominated or payable in the relevant Currency. The Exchange Rate Agent shall promptly give written notice to the Company, the Guarantor and the Trustee of any such decision or determination.
In the event that the Company or the Guarantor determines in good faith that a Conversion Event has occurred with respect to a Foreign Currency, the Company or the Guarantor, as applicable, will immediately give written notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will promptly thereafter give notice in the manner provided for in Section 106 to the Holder of any Security that has made the election provided for in Section 312(b)) specifying the Conversion Date. In the event the Company or the Guarantor so determines that a Conversion Event has occurred with respect to the euro or any other currency unit in which Securities are denominated or payable, the Company or the Guarantor, as applicable, will immediately give written notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will promptly thereafter give notice in the manner provided for in Section 106 to the affected Holders) specifying the Conversion Date and the Specified Amount of each Component Currency on the Conversion Date. In the event the Company or the Guarantor determines in good faith that any subsequent change in any Component Currency as set forth in the definition of Specified Amount above has occurred, the Company or the Guarantor, as applicable, will similarly give written notice to the Trustee and the Exchange Rate Agent.
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The Trustee shall be fully justified and protected in relying and acting upon information received by it from the Company, the Guarantor and the Exchange Rate Agent and shall not otherwise have any duty or obligation to determine the accuracy or validity of such information independent of the Company, the Guarantor or the Exchange Rate Agent.
SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a Currency other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required under any other provision of this Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 301 for the purpose of determining the applicable rate of exchange and, if applicable, for the purpose of converting the issued Currency into the applicable payment Currency for the payment of principal (and premium, if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered to the Company, the Guarantor and the Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent for any cause with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of that or those series (it being understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all of such series and that, unless otherwise specified pursuant to Section 301, at any time there shall only be one Exchange Rate Agent with respect to the Securities of any particular series that are originally issued by the Company on the same date and that are initially denominated and/or payable in the same Currency).
SECTION 314. CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” or “ISIN” numbers (if then generally in use), and, if so, the Trustee shall indicate the “CUSIP” or “ISIN” numbers of the Securities in notices of redemption as a convenience to Holders; PROVIDED that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
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Article
Four
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request or Guarantor Request cease to be of further effect with respect to any series of Securities specified in such Company Request or Guarantor Request (except as to any surviving rights of registration of transfer or exchange of Securities of such series expressly provided for herein or pursuant hereto and any right to receive Additional Amounts as contemplated by Section 1005) and the Trustee, upon receipt of a Company Order or Guarantor Order, and at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when
(1) either
(A) all Securities of such series theretofore authenticated and delivered (other than (i) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities of such series for whose payment money has theretofore been deposited in trust with the Trustee or any Paying Agent or segregated and held in trust by the Company or the Guarantor and thereafter repaid to the Company or the Guarantor, as the case may be, or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company and the Guarantor,
and the Company or the Guarantor, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose an amount in the Currency in which the Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest and Additional Amounts, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
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(2) the Company or the Guarantor has paid or caused to be paid all other sums payable hereunder by the Company and the Guarantor; and
(3) the Company or the Guarantor, as the case may be, has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company and the Guarantor to the Trustee and any predecessor Trustee under Section 606, the obligations of the Company and the Guarantor to any Authenticating Agent under Section 611 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 402, any rights to Additional Amounts pursuant to Section 1005 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own, or authorizing the Guarantor to act as, Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with or received by the Trustee; but such money need not be segregated from other funds except to the extent required by law.
Article
Five
REMEDIES
SECTION 501. Events of Default.
“Event of Default”, wherever used herein with respect to Securities of any particular series, means any one of the following events (whatever the reason for such Event of Default and whether or not it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest or any Additional Amounts upon on any Security of that series, when such interest or Additional Amount becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security of that series when it becomes due and payable at its Maturity; or
(3) failure to pay when due, after the expiration of any applicable grace period, any portion of the principal of, or involuntary acceleration of the maturity (which acceleration is not rescinded or annulled within 10 days) of, Debt of the Company or the Guarantor having an aggregate principal amount outstanding in excess of the greater of (i) $100,000,000 and (ii) 5.0% of Consolidated Net Tangible Assets of the Guarantor; or
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(4) default in the deposit of any sinking fund payment, when and as due by the terms of the Securities of that series and Article Twelve; or
(5) default in the performance, or breach, of any covenant or agreement of the Company or the Guarantor in this Indenture with respect to any Security of that series or, as the case may require, the Guarantees (other than a covenant or agreement a default in whose performance or whose breach is specifically dealt with elsewhere in this Section) and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company and the Guarantor by the Trustee, or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(6) the Company or the Guarantor pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in an involuntary case,
(c) consents to the appointment of a Custodian of it or for all or substantially all of its property, or
(d) makes a general assignment for the benefit of its creditors; or
(7) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(a) is for relief against the Company or the Guarantor in an involuntary case,
(b) appoints a Custodian of the Company or the Guarantor or for all or substantially all of either of their respective properties, or
(c) orders the liquidation of the Company or the Guarantor,
and, in the case of (a), (b) or (c), the order or decree or other measures remain unstayed and in effect for 90 days; or
(8) the Guarantee of the Securities of that series ceases to be in full force and effect; or
(9) any other Event of Default provided with respect to Securities of that series.
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The term “Bankruptcy Law” means title 11, U.S. Code, any similar Federal or State law for the relief of debtors, and any similar Republic of South Africa law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in Section 501 with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal (or, if the Securities of that series are Original Issue Discount Securities or Indexed Securities, such portion of the principal as may be specified in the terms of that series) of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Company and the Guarantor (and to the Trustee if given by Holders), and upon any such declaration such principal (or specified portion thereof) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company, the Guarantor and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company or the Guarantor has paid or deposited with the Trustee a sum sufficient to pay in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)):
(A) all overdue interest and Additional Amounts, if any, on all Outstanding Securities of that series (or of all series, as the case may be),
(B) the principal of (and premium, if any, on) Outstanding Securities of that series which have become due otherwise than by such declaration of acceleration, and interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest on overdue interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of (or premium, if any) or interest on Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company and the Guarantor covenant that if
(1) default is made in the payment of any installment of interest and Additional Amounts on any Security of any series when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security of any series at its Maturity,
then the Company or the Guarantor will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of Securities of such series, the whole amount then due and payable on such Securities for principal (and premium, if any) and interest, if any, with interest on any overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company or the Guarantor fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company, the Guarantor or any other obligor upon Securities of such series and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company, the Guarantor or any other obligor upon Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company, the Guarantor or any other obligor upon the Securities or the property of the Company, the Guarantor or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities of any series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company or the Guarantor for the payment of overdue principal, premium, if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:
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(i) to file and prove a claim for the whole amount of principal (or in the case of Original Issue Discount Securities or Indexed Securities, such portion of the principal as may be specified in the terms thereof) (and premium, if any) and interest, if any, owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of Securities of such series to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee and any predecessor Trustee, their agents and counsel, and any other amounts due to the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a security in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities or the Guarantees may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Securities, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due to the Trustee and any predecessor Trustee under Section 606;
Second: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest, if any, on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the aggregate amounts due and payable on such Securities for principal (and premium, if any) and interest, if any, respectively; and
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Third: To the payment of the remainder, if any, to the Company or any other Persons entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 307) interest, if any, on such Security on the respective due dates expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
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SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, the Company, the Guarantor, the Trustee and the Holders of Securities shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
With respect to the Securities of any series, the Holders of not less than a majority in principal amount of the Outstanding Securities of such series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
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(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in personal liability or be unjustly prejudicial to the Holders of Securities of such series not consenting.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
(1) in respect of the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
Each of the Company and the Guarantor covenants (to the extent that each may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each of the Company and the Guarantor (to the extent that each may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorney’s fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 515 does not apply to a suit by the Trustee, or a suit by Holders of more than 10% in principal amount of the then Outstanding Securities.
SECTION 516. Statement by Officer as to Default.
The Company shall deliver to the Trustee, as soon as possible after the Company becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officer’s Certificate setting forth the details of such Event of Default or default and the action which the Company proposes to take with respect thereto.
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Article
Six
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder with respect to the Securities of any series, the Trustee shall transmit in the manner and to the extent provided in TIA Section 313(c), notice of such Default hereunder known to a Responsible Officer of the Trustee, unless such Default shall have been cured or waived; provided, however, that, except in the case of a Default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series or, in the payment of any sinking or purchase fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as a Responsible Officer of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities; and provided further that in the case of any Default of the character specified in Section 501(5) with respect to Securities, no such notice to Holders shall be given until at least 60 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee.
(A) Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order or of the Guarantor mentioned herein shall be sufficiently evidenced by a Guarantor Request or Guarantor Order (in each case, other than delivery of any Security to the Trustee for authentication and delivery pursuant to Section 303 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may request and, in the absence of bad faith on its part, conclusively rely upon a Board Resolution, an Opinion of Counsel or an Officer’s Certificate;
(4) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company and the Guarantor, personally or by agent or attorney and shall incur no liability or additional liability of any kind of reason of such inquiry or investigation;
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(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(9) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture and such notice states that it is a notice of Default or Event of Default;
(10) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each Agent, custodian and other Person employed to act hereunder; and
(11) the Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of directors or officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;
(12) in no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(13) any action taken, or omitted to be taken, by the Trustee in good faith pursuant to this Indenture upon the request or authority or consent of any person who, at the time of making such request or giving such authority or consent, is the Holder of any Security shall be conclusive and binding upon future holders of Securities and upon Securities executed and delivered in exchange therefor or in place thereof;
(14) the Trustee shall not be required to give any bond or surety in respect of the execution of the trusts and powers under this Indenture;
(15) any permissive right of the Trustee to take or refrain from taking actions enumerated in this Indenture shall not be construed as a duty;
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(16) neither the Trustee nor any of its directors, officers, employees, agents or affiliates shall be responsible for nor have any duty to monitor the performance or any action of the Company or any Guarantor, or any of their respective directors, members, officers, agents, affiliates or employee, nor shall it have any liability in connection with the malfeasance or nonfeasance by such party. The Trustee shall not be responsible for any inaccuracy in the information obtained from the Company or any Guarantor or for any inaccuracy or omission in the records which may result from such information or any failure by the Trustee to perform its duties as set forth herein as a result of any inaccuracy or incompleteness;
(17) if any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively and without liability rely on its failure to receive such notice as reason to act as if no such event occurred.
(B) (1) Except during the continuance of an Event of Default,
(a) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(b) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(2) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(3) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(a) this Subsection shall not be construed to limit the effect of Subsection (1) of this Section;
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
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(4) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.
The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except for the Trustee’s certificates of authentication, shall be taken as the statements of the Company or the Guarantor, as the case may be, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or the Guarantees, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, the Guarantor or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company or the Guarantor with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company or the Guarantor, as the case may be.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation for all services rendered by it hereunder as has been agreed in writing (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
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(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its own negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction; and
(3) to indemnify the Trustee (including its officers, directors, employees and agents) for, and to hold it harmless against, any loss, damage, claim, liability or expense incurred by it arising out of or in connection with this Indenture or the Securities, and the transactions contemplated thereby, including the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Company, the Guarantor, or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder or thereunder (including with respect to enforcement of its right to indemnity hereunder), except to the extent any such loss, damage, claim, liability or expense is determined by a court of competent jurisdiction in an final, non-appealable judgment to have been caused by the Trustee’s own negligence or willful misconduct.
In the event the Company fails to make any such payments or indemnify the Trustee the Guarantor hereby agrees to make such payments and/or indemnify the Trustee on its behalf. As security for the performance of the obligations of the Company and the Guarantor under this Section, the Trustee shall have a claim prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services after the occurrence of an Event of Default relating to insolvency or bankruptcy, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section 606 shall survive the satisfaction, discharge and termination of this Indenture or the earlier resignation or removal of the Trustee.
SECTION 607. Corporate Trustee Required; Eligibility.
(a) There shall be at all times a Trustee hereunder which shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined capital and surplus of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of U.S. Federal, State, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 609.
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(b) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company and the Guarantor.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Company, the Guarantor or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607(a) and shall fail to resign after written request therefor by the Company, the Guarantor or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company or the Guarantor, by or pursuant to a Board Resolution, may remove the Trustee and appoint a successor Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e), any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause with respect to the Securities of one or more series, the Company and the Guarantor, by or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series). If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee may, at the expense of the Company or the Guarantor, petition any court of competent jurisdiction for the appointment of a successor Trustee. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company, the Guarantor and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company and the Guarantor. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company and the Guarantor or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
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(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series in the manner provided for notices to the Holders of Securities of such series in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee shall execute, acknowledge and deliver to the Company, the Guarantor and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company, the Guarantor or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the Guarantor, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company, the Guarantor or any successor Trustee, such retiring Trustee (subject to subsection (a) above) shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. Whenever there is a successor Trustee with respect to one or more (but less than all) series of securities issued pursuant to this Indenture, the terms “Indenture” and “Securities” shall have the meanings specified in the provisos to the respective definitions of those terms in Section 101 which contemplate such situation.
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(c) Upon request of any such successor Trustee, the Company and the Guarantor shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.
Any corporation or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other entity succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. In case any of the Securities shall not have been authenticated by such predecessor Trustee, any successor Trustee may authenticate and deliver such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides for the certificate of authentication of the Trustee; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, registration of transfer or partial redemption thereof, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, and a copy of such instrument shall be promptly furnished to the Company and the Guarantor. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent.
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Each Authenticating Agent shall be acceptable to the Company and the Guarantor and, except as may otherwise be provided pursuant to Section 301, shall at all times be a bank or trust company or corporation organized and doing business and in good standing under the laws of the United States of America, any state thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Section.
Any corporation or other entity into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation or other entity succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company and the Guarantor. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company and the Guarantor. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and the Guarantor and shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the manner provided for in Section 106. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
Dated: ____________________
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| [NAME OF TRUSTEE], | ||
| as Trustee | ||
| By | ||
| as Authenticating Agent | ||
| By | ||
| Authorized Officer | ||
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Article
Seven
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same, agrees with the Company, the Guarantor and the Trustee that none of the Company, the Guarantor or the Trustee or any agent of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with TIA Section 312, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the first May 15 after the first issuance of Securities pursuant to this Indenture, the Trustee shall transmit to the Holders of Securities, in the manner and to the extent provided in TIA Section 313(c), a brief report dated as of May 15 if required by TIA Section 313(a).
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange, if any, upon which the Securities are listed, with the Commission and with the Company. The Company will promptly notify the Trustee of the listing or delisting of the Securities on any stock exchange.
SECTION 703. Reports by the Company and the Guarantor.
The Company and the Guarantor shall:
(1) file with the Trustee, within 15 days after the Company or the Guarantor, as the case may be, is required to file the same with the Commission, copies of the annual reports and of the information, documents, and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company or the Guarantor, as the case may be, may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended; or, if the Company or the Guarantor, as the case may be, is not required to file information, documents or reports pursuant to either of such Sections, then it shall file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934, as amended, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;
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(2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company and the Guarantor, as the case may be, with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(3) transmit to all Holders, in the manner and to the extent provided in TIA Section 313(c), within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company or the Guarantor pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s or the Guarantor’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely upon Officer’s Certificates).
Article
Eight
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company or Guarantor May Consolidate, etc., Only on Certain Terms.
Neither the Company nor the Guarantor shall consolidate with or merge into any other corporation or convey or transfer its properties and assets substantially as an entirety to any Person, unless:
(1) either the Company or the Guarantor shall be the continuing corporation, or the corporation formed by such consolidation or into which the Company or the Guarantor is merged or the Person which acquires by conveyance or transfer the properties and assets of the Company or the Guarantor substantially as an entirety shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee acting reasonably, in the case of the Company, the due and punctual payment of the principal of (and premium, if any) and interest, if any, on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed, and, in the case of the Guarantor, the due and punctual performance of the Guarantees and the performance or observance of every covenant of this Indenture on the part of the Guarantor to be performed or observed;
(2) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(3) the Company or such Person shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with and, with respect to such Opinion of Counsel, that such supplemental indenture is the legal, valid and binding obligation of the Company or such Person.
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This Section shall only apply to a merger or consolidation in which the Company or the Guarantor, as the case may be, is not the surviving corporation and to conveyances and transfers by the Company or the Guarantor, as the case may be, as transferor.
SECTION 802. Successor Person Substituted.
Upon any consolidation or merger, or any conveyance or transfer of the properties and assets of the Company or the Guarantor, as the case may be substantially as an entirety to any Person in accordance with Section 801, the successor Person formed by such consolidation or into which the Company or the Guarantor is merged or to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company or the Guarantor under this Indenture with the same effect as if such successor Person had been named as the Company or the Guarantor, as the case may be, herein; and in the event of any such conveyance or transfer, the Company or the Guarantor, as the case may be, shall be discharged from all obligations and covenants under this Indenture and the Securities, or the Guarantees, as the case may be, and may be dissolved and liquidated.
SECTION 803. [Intentionally Omitted].
Article
Nine
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Guarantor, when authorized by or pursuant to a Board Resolution of the Company and the Guarantor, as applicable, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee acting reasonably, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or the Guarantor and the assumption by any such successor of the covenants of the Company or the Guarantor contained herein and in the Securities; or
(2) to add to the covenants of the Company or the Guarantor for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or the Guarantor; or
(3) to add any additional Events of Default (and if such Events of Default are to be for the benefit of less than all series of Securities, stating that such Events of Default are being included solely for the benefit of such series); provided, however, that in respect of any such additional Events of Default such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default or may limit the right of the Holders of a majority in aggregate principal amount of that or those series of Securities to which such additional Events of Default apply to waive such default; or
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(4) [Intentionally omitted]
(5) to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or
(6) to secure the Securities or the Guarantees pursuant to the requirements of Section 1006 or otherwise; or
(7) to establish the form or terms of Securities of any series or Guarantees as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture; provided any such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect; or
(10) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Sections 401, 1402 and 1403; provided that any such action shall not adversely affect the interests of the Holders of Securities of such series or any other series of Securities in any material respect; or
(11) to conform the text of this Indenture or the Securities to any provision of sections entitled “Description of Notes”, “Description of Debt Securities” or analogous sections as set forth in the offering document relating to the offering of the Securities.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities affected by such supplemental indenture, by Act of said Holders delivered to the Company, the Guarantor and the Trustee, the Company and the Guarantor, when authorized by or pursuant to a Board Resolution of the Company and the Guarantor, as the case may be, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture which affect such series of Securities or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of such series:
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(1) change the Stated Maturity of the principal of (or premium, if any) or any installment of interest on any Security of such series, or reduce the principal amount thereof (or premium, if any) or the rate of interest, if any, thereon, or change any obligation of the Company or the Guarantor to pay Additional Amounts contemplated by Section 1005 (except as contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the amount of the principal of an Original Issue Discount Security of such series that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502 or the amount thereof provable in bankruptcy pursuant to Section 504, or adversely affect any right of repayment at the option of any Holder of any Security of such series, or change any Place of Payment where, or the Currency in which, any Security of such series or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment at the option of the Holder, on or after the Redemption Date or Repayment Date, as the case may be), or adversely affect any right to convert or exchange any Security as may be provided pursuant to Section 301 herein, or
(2) reduce the percentage in principal amount of the Outstanding Securities of such series required for any such supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this Indenture which affect such series or certain defaults applicable to such series hereunder and their consequences provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 and Section 1008, except to increase any such percentage or to provide that certain other provisions of this Indenture which affect such series cannot be modified or waived without the consent of the Holder of each Outstanding Security of such series.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be given, and shall (subject to Section 315 of the Trust Indenture Act) be fully protected in relying upon, an Opinion of Counsel and an Officer’s Certificate stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and, with respect to such Opinion of Counsel, that such supplemental indenture is the legal, valid and binding obligation of the Company and the Guarantor, as applicable. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
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SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company and the Guarantor shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee, the Company and the Guarantor, to any such supplemental indenture may be prepared and executed by the Company, the Guarantees noted or endorsed thereon may be prepared and executed by the Guarantor, and such Securities may be authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
Article
Ten
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders of each series of Securities that it will duly and punctually pay the principal of (and premium, if any) and interest, if any, by 2:00 p.m. New York time on the day prior to the date such principal of (and premium, if any) and interest is due on the Securities of that series in accordance with the terms of such series of Securities and this Indenture. Unless otherwise specified with respect to Securities of any series pursuant to Section 301, at the option of the Company, all payments of principal may be paid by check to the registered Holder of the Security or other person entitled thereto against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange, where Securities of that series that are exchangeable may be surrendered for exchange, as applicable and where notices and demands to or upon the Company or the Guarantor, as the case may be, in respect of the Securities of that series and this Indenture may be served.
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The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the same as its agents to receive such respective presentations, surrenders, notices and demands; provided, however, the Trustee shall not be deemed an agent of the Company for service of process.
The Guarantor shall maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment pursuant to any Guarantee and where notices and demands to or upon the Guarantor in respect of any Guarantee and this Indenture may be served. The Guarantor will give prompt written notice to the Trustee of the location, and any change in the location, of each such office or agency. If at any time the Guarantor shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Guarantor hereby appoints the same as its agent to receive such respective presentations, surrenders, notices and demands, and the Guarantor hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company or the Guarantor may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes, and may from time to time rescind any such designation; provided, however, that no such designation or rescission shall in any manner relieve the Company or the Guarantor of its obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any series for such purposes. The Company or the Guarantor will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. Unless otherwise specified with respect to any Securities as contemplated by Section 301 with respect to a series of Securities, the Company and the Guarantor each hereby designate as a Place of Payment for each series of Securities the office or agency of the Company or the Guarantor, as the case may be, in Wilmington, Delaware, and initially appoint the Trustee at its Corporate Trust Office as Paying Agent in such city and as their agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a Currency other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required under any other provision of the Indenture, then the Company or the Guarantor, as the case may be, will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own, or authorize the Guarantor to act as, Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (or premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal of (or premium, if any) or interest, if any, on Securities of such series so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to or on each due date of the principal of (or premium, if any) or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum (in the Currency described in the preceding paragraph) sufficient to pay the principal (or premium, if any) or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company or the Guarantor may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order or Guarantor Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.
Subject to applicable law, except as provided in the Securities of any series, any money deposited with the Trustee or any Paying Agent, or then held by the Company or the Guarantor, in trust for the payment of the principal of (or premium, if any) or interest, if any, on any Security of any series, and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request (if then held by the Company) or, if deposited by the Guarantor, paid to the Guarantor on Guarantor Request shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company and the Guarantor for payment thereof (without interest thereon), and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company or the Guarantor cause to be published once, in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company or the Guarantor, as the case may be.
SECTION 1004. Statement as to Compliance.
The Company and the Guarantor will each deliver to the Trustee, within 120 days after the end of each fiscal year, a brief certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Company’s or the Guarantor’s, as the case may be, compliance with all conditions and covenants under this Indenture, including specifying any Default hereunder. For purposes of this Section 1004, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.
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SECTION 1005. Additional Amounts.
All payments of, or in respect of, principal of and any premium and interest on the Securities, and all payments pursuant to any Guarantee, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of a Taxing Jurisdiction, unless such taxes, duties, assessments or governmental charges are required by such Taxing Jurisdiction to be withheld or deducted. In that event, the Company or the Guarantor, as applicable, will pay such additional amounts of, or in respect of, principal and any premium and interest (“Additional Amounts”) as will result (after deduction of such taxes, duties, assessments or governmental charges and any additional taxes, duties, assessments or governmental charges payable in respect of such) in the payment to each Holder of a Security of the amounts which would have been payable in respect of such Security or the Guarantee thereof, as the case may be, had no such withholding or deduction been required, except that no Additional Amounts shall be so payable for or on account of:
(1) any tax, duty, assessment or other governmental charge imposed by any government of any jurisdiction other than a Taxing Jurisdiction;
(2) any tax, duty, assessment or other governmental charge which would not have been imposed but for (A) the existence of any present or former connection between such Holder, or a third party on behalf of such Holder, or beneficial owner of a Security by reason of its having some present or former connection with a Taxing Jurisdiction other than as a result of holding a Security or enforcing its rights thereunder (including, but not limited to, being or having been a citizen, resident or national of a Taxing Jurisdiction or being or having been engaged in a trade or business or present therein or having or having had a permanent establishment therein, but not including the mere holding or ownership of a debt security), or (B) the presentation of such Security for payment more than 30 days after the date on which such payment became due or was provided for, whichever is later;
(3) any estate, inheritance, gift, sale, transfer, personal property, value added, excise or similar tax, duty, assessment or other governmental charge;
(4) any tax, duty, assessment or other governmental charge which is payable otherwise than by withholding or deduction from payments of (or in respect of) principal of or any premium or interest on the Securities or the Guarantee(s) thereof;
(5) any tax, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure to accurately comply by the Holder or the beneficial owner of a Security with a request of the Company or the Guarantor addressed to the Holder (A) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (B) to make any claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by statute, treaty, regulation or administrative practice of the Taxing Jurisdiction as a precondition to exemption from all or part of such tax, assessment or other governmental charge;
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(6) any tax, assessment or other governmental charge imposed, deducted or withheld pursuant to section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) or otherwise imposed pursuant to sections 1471 through 1474 of the Code, in each case, as of the date of issuance any series of Security (and any amended or successor version that is substantially comparable), any current or future regulations or agreements thereunder, official interpretations thereof or similar law or regulation implementing an intergovernmental agreement relating thereto;
(7) any tax, assessment or other governmental charge imposed by reason of the Holder’s past or present status as a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or a personal holding company with respect to the United States or as a corporation that accumulates earnings to avoid U.S. federal income tax;
(8) any tax, assessment or other governmental charge imposed on interest received by (1) a 10% shareholder (as defined in section 871(h)(3)(B) of Code, and the regulations promulgated thereunder) of the Company or (2) a controlled foreign corporation that is related to the Company within the meaning of section 864(d)(4) of the Code, or (3) a bank receiving interest described in section 881(c)(3)(A) of the Code, to the extent such tax, assessment or other governmental charge would not have been imposed but for the holder’s status as described in clauses (1) through (3) of this bullet;
(9) in the case of a holder that is a U.S. Person (as defined below), the amount of any withholding tax or deduction, or any similar tax, imposed by the United States or a political subdivision thereof; or
(10) any combination of items (1), (2), (3), (4), (5), (6), (7), (8) and (9).
Additionally, Additional Amounts shall not be paid with respect to any payment in respect of any Security to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner of such payment would not have been entitled to such Additional Amounts had it been the Holder of such Security.
Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any series (or any payments pursuant to the Guarantee thereof) such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of Additional Amounts in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
As used in this Section 1005, “U.S. Person” means any individual who is a citizen or resident of the United States for U.S. federal income tax purposes, a corporation created or organized in or under the laws of the United States, any state of the United States or the District of Columbia, a partnership or other entity created or organized in or under the laws of the United States, any state of the United States or the District of Columbia (other than a partnership or other entity that is not treated as a United States person under any applicable U.S. Treasury regulations), or any estate or trust the income of which is subject to U.S. federal income taxation regardless of its source.
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The provisions of this Section 1005 shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future taxes, assessments or governmental charges of whatever nature of any jurisdiction in which any successor Person to the Company or the Guarantor is organized or tax resident.
SECTION 1006. Limitation on Liens
The Guarantor will not itself, and will not permit any Restricted Subsidiary to, create, incur, issue, assume or guarantee any Debt secured by any Lien on any Principal Property owned by the Guarantor or any Restricted Subsidiary, or upon any shares of stock of or Debt owed to any Restricted Subsidiary (such shares of stock or Debt of any Restricted Subsidiary being called “Restricted Securities”), without in any such case effectively providing that the Securities (together with, if the Guarantor shall so determine, any other Debt of the Guarantor or such Restricted Subsidiary then existing or thereafter created which is not subordinate to the Securities) shall be secured equally and ratably with (or prior to) such secured Debt, so long as such secured Debt shall be so secured, unless, after giving effect thereto, the aggregate principal amount of all such secured Debt then outstanding plus the Attributable Debt of the Guarantor and its Restricted Subsidiaries in respect of sale and leaseback transactions (as defined in Section 1007) involving Principal Properties entered into after the date of the first issuance by the Company of Securities issued pursuant to this Indenture (other than sale and leaseback transactions permitted by paragraph (b) of Section 1007) would not, with respect to a series of Securities, exceed an amount equal to a certain percentage, set forth in the Board Resolution, Officer’s Certificate or supplemental indenture establishing such series, of Consolidated Net Tangible Assets; provided, however, that nothing contained in this Section shall prevent, restrict or apply to, and there shall be excluded from secured Debt in any computation under this Section, Debt secured by:
(a) Liens on any property, shares of stock or Debt of any corporation existing at the time such corporation becomes a Subsidiary of the Guarantor, provided that any such Lien was not created in contemplation of such corporation’s becoming a Subsidiary of the Guarantor;
(b) Liens on any Principal Property or Restricted Securities of the Restricted Subsidiary or any Principal Property of the Guarantor existing at the time of acquisition thereof (including acquisition through merger or consolidation) or securing the payment of all or any part of the purchase price thereof or all or part of the cost of the improvement, construction, alteration or repair of any building, equipment or facilities or of any other improvements on, all or any part of such Principal Property or to secure any Debt incurred prior to, at the time of, or within 12 months after, in the case of Restricted Securities, the acquisition of such Restricted Securities and, in the case of any Principal Property, the later of the acquisition, the completion of construction (including any improvements, alterations or repairs on an existing Principal Property) or the commencement of commercial operation of such Principal Property, which Debt is incurred for the purpose of financing all or any part of the purchase price thereof or all or part of the cost of improvement, construction, alteration or repair thereon;
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(c) Liens on any Principal Property or Restricted Securities of any Restricted Subsidiary to secure all or any part of the cost of exploration, drilling, development, improvement, construction, alteration or repair of any part of such Principal Property, or to secure any Debt incurred to finance or refinance all or any part of such cost;
(d) Liens existing at the date of this Indenture;
(e) Liens that secure Debt owing by a Restricted Subsidiary to the Guarantor or any subsidiary of the Guarantor;
(f) Liens on property owned or held by any corporation or on shares of stock or indebtedness of any corporation, in either case existing at the time such corporation is merged into or consolidated or amalgamated with the Guarantor or a Restricted Subsidiary, or at the time of a sale, lease or other disposition of the properties of a corporation as an entirety or substantially as an entirety to the Guarantor or a Restricted Subsidiary;
(g) Liens arising by operation of law (other than by reason of default);
(h) Liens to secure Debt incurred in the ordinary course of business and maturing not more than 12 months from the date incurred;
(i) Liens arising pursuant to the specific terms of any license, joint operating agreement, unitization agreement or other similar document evidencing the interest of the Guarantor or a Restricted Subsidiary in any mine or any oil or gas producing property or related facilities (including pipelines), provided that any such Lien is limited to such interest;
(j) any Lien on any Principal Property of the Guarantor or the Restricted Subsidiary or on the Restricted Securities of the Restricted Subsidiary in relation to which Project Finance Indebtedness has been incurred to secure that Project Finance Indebtedness;
(k) Liens created in accordance with normal practice to secure Debt of the Guarantor, the main purpose of which is the raising of finances under any options, futures, swaps, short sale contracts or similar or related instruments that relate to the purchase or sale of securities, commodities or currencies; and
(l) any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any Liens referred to above, or of any Debt secured thereby; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement Lien shall be limited to all or any part of the same property, shares of stock or Debt that secured the Lien extended, renewed or replaced (plus improvements on such property), or property received or shares of stock issued in substitution or exchange therefor.
For the purposes of this Section 1006 and Section 1007, the giving of a guarantee which is secured by a Lien on a Principal Property or Restricted Securities, and the creation of a Lien on a Principal Property or Restricted Securities to secure Debt which existed prior to the creation of such Lien, shall be deemed to involve the creation of Debt in an amount equal to the principal amount guaranteed or secured by such Lien; but the amount of Debt secured by Liens on Principal Properties and Restricted Securities shall be computed without cumulating the underlying indebtedness with any guarantee thereof or Lien securing the same.
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For purposes of this Section 1006 and Section 1007, the following shall not be deemed to create Debt secured by a Lien and, accordingly, nothing contained in this Section or Section 1007 shall prevent, restrict or apply to:
(A) the sale or other transfer, by way of security or otherwise, of (i) coal, oil, gas or other minerals in place or at the wellhead or a right or license granted by any governmental authority to explore for, drill, mine, develop, recover or get such coal, oil, gas or other minerals (whether such license or right is held with others or not) for a period of time until, or in an amount such that, the purchaser will realize therefrom a specified amount of money (however determined) or a specified amount of such coal, oil, gas or other minerals, or (ii) any other interest in property of the character commonly referred to as a “production payment”, “royalty” or “stream”; and
(B) Liens on property in favor of the United States or any state thereof, or the Republic of South Africa, or any other country, or any political subdivision of any of the foregoing, or any department, agency or instrumentality of the foregoing, to secure partial, progress, advance or other payments pursuant to the provisions of any contract or statute, including, without limitation, Liens to secure indebtedness of the pollution control or industrial revenue bond type, or to secure any Debt incurred for the purpose of financing all or any part of the purchase price or cost of construction of the property or the acquisition of equipment subject to such Liens.
SECTION 1007. Limitation on Sale and Leaseback Transactions
The Guarantor will not itself, and will not permit any Restricted Subsidiary to, enter into any arrangement after the date of the first issuance by the Company of Securities issued pursuant to this Indenture, with any bank, insurance company or other lender or investor (other than the Guarantor or another Restricted Subsidiary) providing for the leasing by the Guarantor or any such Restricted Subsidiary of any Principal Property (except a lease for a temporary period not to exceed three years by the end of which it is intended that the use of such Principal Property by the lessee will be discontinued), which was or is owned or leased by the Guarantor or a Restricted Subsidiary and which has been or is to be sold or transferred more than 12 months after the acquisition thereof or after the completion of construction and commencement of full operation thereof by the Guarantor or such Restricted Subsidiary to such lender or investor or to any Person to whom funds have been or are to be advanced by such lender or investor on the security of such Principal Property (herein referred to as a “sale and leaseback transaction”), unless:
(a) the Attributable Debt of the Guarantor and its Restricted Subsidiaries in respect of such sale and leaseback transaction and all other sale and leaseback transactions entered into after the date of the first issuance by the Company of Securities issued pursuant to this Indenture (other than such sale and leaseback transactions as are permitted by paragraph (b) below), plus the aggregate principal amount of Debt secured by Liens on Principal Properties and Restricted Securities then outstanding (excluding any such Debt secured by permitted Liens covered in Section 1006) without equally and ratably securing the Securities, would not, with respect to a series of Securities, exceed a certain percentage, set forth in the Board Resolution, Officer’s Certificate or supplemental indenture establishing such series, of Consolidated Net Tangible Assets, or
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(b) the Guarantor, within 12 months after the sale or transfer, applies or causes a Restricted Subsidiary to apply an amount equal to the greater of the net proceeds of such sale or transfer or fair market value of the Principal Property so sold and leased back at the time of entering into such sale and leaseback transaction (in either case as determined by any two directors, or any director and secretary, of the Guarantor) to the retirement of Securities of any series or other Debt of the Guarantor (other than Debt subordinated to the Securities) or Debt of a Restricted Subsidiary, having a stated maturity more than 12 months from the date of such application or which is extendible at the option of the obligor thereon to a date more than 12 months from the date of such application (and, unless otherwise expressly provided with respect to any one or more series of Securities, any redemption of Securities pursuant to this provision shall not be deemed to constitute a refunding operation or anticipated refunding operation for the purposes of any provision limiting the Company’s right to redeem Securities of any one or more such series when such redemption involves a refunding operation or anticipated refunding operation); provided that the amount to be so applied shall be reduced by (i) the principal amount of Securities delivered within 12 months after such sale or transfer to the Trustee for retirement and cancellation, and (ii) the principal amount of any such Debt of the Guarantor or a Restricted Subsidiary, other than Securities, voluntarily retired by the Guarantor or a Restricted Subsidiary within 12 months after such sale or transfer. Notwithstanding the foregoing, no retirement referred to in this paragraph (b) may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or any mandatory prepayment provision, or
(c) the Guarantor or such Restricted Subsidiary would be entitled, pursuant to Section 1006, to incur Debt secured by a Lien on the Principal Property to be leased without equally and ratably securing the Securities, or
(d) the Guarantor shall, at or prior to the time of entering into the sale and leaseback transaction, enter into a bona fide commitment or commitments to expend for the acquisition or improvement of a Principal Property an amount at least equal to the fair value (as so determined) of the property sold and leased back.
Notwithstanding the foregoing, where the Guarantor or any Restricted Subsidiary is the lessee in any sale and leaseback transaction, Attributable Debt shall not include any Debt resulting from the guarantee by the Guarantor or any other Restricted Subsidiary of the lessee’s obligation thereunder.
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SECTION 1008. Waiver of Certain Covenants.
The Company and the Guarantor, as the case may be, may, with respect to any series of Securities, omit in any particular instance to comply with any term, provision or condition which affects such series set forth in Sections 1006 and 1007, inclusive, or, as specified pursuant to Section 301(15) for Securities of such series, in any covenants of the Company or the Guarantor added to Article Ten pursuant to Section 301(14) or Section 301(15) in connection with Securities of such series, if before or after the time for such compliance the Holders of at least a majority in principal amount of all Outstanding Securities of such series, by Act of such Holders, waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the Guarantor and the duties of the Trustee to Holders of Securities of such series in respect of any such term, provision or condition shall remain in full force and effect.
SECTION 1009. Calculation of Original Issue Discount
While any series of Original Issue Discount Security is outstanding, the Company shall provide to the Holders, upon request, by December 31 of each year such information in the Company’s possession as the Holder reasonably requires to enable the Holder to prepare and file any form required to be submitted to the Internal Revenue Service and to the Holders of any series of Securities relating to original issue discount, including, without limitation, Form 1099-OID or any successor form.
Article
Eleven
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of less than all of the Securities of a series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series issued on the same day with the same terms are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series issued on the same day with the same terms not previously called for redemption, by lot or any other method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions of the principal of Securities of such series; provided, however, that no such partial redemption shall reduce the portion of the principal amount of a Security not redeemed to less than the minimum authorized denomination for Securities of such series established pursuant to Section 301.
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The Trustee shall promptly notify the Company and the Security Registrar (if other than itself) in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Except as otherwise specified as contemplated by Section 301, notice of redemption shall be given in the manner provided for in Section 106 not less than 10 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, but failure to give such notice in the manner herein provided to the Holder of any Security designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other such Security or portion thereof.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the Redemption Date payable as provided in Section 1106, if any,
(3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued interest, if any, to the Redemption Date payable as provided in Section 1106 will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the case, and
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(8) the CUSIP number, if any.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request and provision of such notice information to the Trustee at least 10 days prior to the date such notice of redemption is requested to be sent to the Holders, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) no later than 2:00 p.m. (New York time) on the Business Day prior to such Redemption Date an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the Redemption Price of, and accrued interest, if any, on, all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the Redemption Date), and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest, if any) such Securities shall be void. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest, if any, to the Redemption Date; provided, however, that installments of interest on Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to the provisions of this Article or of Article Twelve) shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing), and the Company shall execute, the Guarantor shall execute the Guarantee noted or endorsed on, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. However, if less than all the Securities of any series with differing issue dates, interest rates and stated maturities are to be redeemed, the Company in its sole discretion shall select the particular Securities to be redeemed and shall notify the Trustee in writing thereof at least 45 days prior to the relevant redemption date.
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SECTION 1108. Optional Redemption Due to Changes in Tax Treatment.
The Company or the Guarantor (or their successors) may redeem each series of Securities at their option in whole but not in part at any time (except in the case of Securities that have a variable rate of interest, which may be redeemed on any interest payment date), if: (i) the Company or the Guarantor would be required to pay Additional Amounts, as a result of any change in the tax laws or treaties (including the official application or interpretation thereof) of a Taxing Jurisdiction or, in the case of a treaty, to which a Taxing Jurisdiction is a party that, in the case of the Company or the Guarantor, becomes effective on or after the date of issuance of that series (or, in the case of a successor, that becomes effective after the date such successor becomes such), as explained in Section 1005, or (ii) there is a change in the official application or interpretation of a treaty to which a Taxing Jurisdiction is a party, this change is proposed and becomes effective on or after a date on which one of the affiliates of the Company borrows money from the Company, and because of the change this affiliate would be required to deduct or withhold tax on payments to the Company to enable the Company to make any payment of principal, premium, if any, or interest.
In both of these cases, however, the Company will not be permitted to redeem a series of Securities if the Company or the Guarantor can avoid either the payment of Additional Amounts, or deductions or withholding, as the case may be, by using reasonable measures available to it. For the avoidance of doubt, reasonable measures shall not include changing the jurisdiction of incorporation of the Company or the Guarantor.
Except in the case of outstanding original issue discount Securities, which may be redeemed at the redemption price specified by the terms of that series of Securities, the redemption price will be equal to the principal amount plus accrued interest to the date of redemption.
Article
Twelve
SINKING FUNDS
SECTION 1201. Applicability of Article.
Retirements of Securities of any series pursuant to any sinking fund shall be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any mandatory sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
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SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
Subject to Section 1203, in lieu of making all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Company may at its option (1) deliver to the Trustee Outstanding Securities of a series (other than any previously called for redemption) theretofore purchased or otherwise acquired by the Company, and/or (2) receive credit for Securities of such series which have been previously delivered to the Trustee by the Company or for Securities of such series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any mandatory sinking fund payment with respect to the Securities of the same series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided, however, that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for Securities of any series, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and will also deliver to the Trustee any Securities to be so delivered and credited. If such Officer’s Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
Article
Thirteen
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at the option of Holders thereof shall be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.
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SECTION 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such Securities, be repaid at a price equal to the principal amount thereof, together with interest, if any, thereon accrued to the Repayment Date specified in or pursuant to the terms of such Securities. The Company and the Guarantor covenant that at least one Business Day prior to the Repayment Date the Company or the Guarantor will deposit with the Trustee or with a Paying Agent (or, if the Company or the Guarantor is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) no later than 2:00 p.m. (New York time) on the Business Day prior to such Repayment Date an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal (or, if so provided by the terms of the Securities of any series, a percentage of the principal) of and (except if the Repayment Date shall be an Interest Payment Date) accrued interest, if any, on, all the Securities or portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option.
Securities of any series subject to repayment at the option of the Holders thereof will contain an “Option to Elect Repayment” form on the reverse of such Securities. To be repaid at the option of the Holder, any Security so providing for such repayment, with the “Option to Elect Repayment” form on the reverse of such Security duly completed by the Holder (or by the Holder’s attorney duly authorized in writing), must be received by the Company at the Place of Payment therefor specified in the terms of such Security (or at such other place or places or which the Company shall from time to time notify the Holders of such Securities) not earlier than 45 days nor later than 30 days prior to the Repayment Date. If less than the entire principal amount of such Security is to be repaid in accordance with the terms of such Security, the principal amount of such Security to be repaid, in increments of the minimum denomination for Securities of such series, and the denomination or denominations of the Security or Securities to be issued to the Holder for the portion of the principal amount of such Security surrendered that is not to be repaid, must be specified. The principal amount of any Security providing for repayment at the option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount of such Security would be less than the minimum authorized denomination of Securities of the series of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security providing for repayment at the option of the Holder thereof, exercise of the repayment option by the Holder shall be irrevocable unless waived by the Company and the Guarantor.
SECTION 1304. When Securities Presented for Repayment Become Due and Payable.
If Securities of any series providing for repayment at the option of the Holders thereof shall have been surrendered as provided in this Article and as provided by or pursuant to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and payable and shall be paid by the Company or the Guarantor on the Repayment Date therein specified, and on and after such Repayment Date (unless the Company or the Guarantor shall default in the payment of such Securities on such Repayment Date) such Securities shall be void. Upon surrender of any such Security for repayment in accordance with such provisions, the principal amount of such Security so to be repaid shall be paid by the Company or the Guarantor, together with accrued interest, if any, to the Repayment Date; provided, however, that installments of interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable (but without interest thereon, unless the Company and the Guarantor shall default in the payment thereof) to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
77
If the principal amount of any Security surrendered for repayment shall not be so repaid upon surrender thereof, such principal amount (together with interest, if any, thereon accrued to such Repayment Date) shall, until paid, bear interest from the Repayment Date at the rate of interest set forth in such Security or Yield to Maturity (in the case of Original Issue Discount Securities).
SECTION 1305. Securities Repaid in Part
Upon surrender of any Security which is to be repaid in part only, the Company shall execute, the Guarantor shall execute the Guarantee noted or endorsed on, and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge and at the expense of the Company, a new Security or Securities of the same series, of any authorized denomination specified by the Holder, in an aggregate principal amount equal to and in exchange for the portion of the principal of such Security so surrendered which is not to be repaid.
Article
Fourteen
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company’s and Guarantor’s Option to Effect Defeasance or Covenant Defeasance.
Unless provided otherwise, pursuant to Section 301 the provisions of such Section or Sections, as the case may be, together with the other provisions of this Article (with such modifications thereto as may be specified pursuant to Section 301 with respect to any Securities), shall be applicable to such Securities, and the Company and the Guarantor may at their option by Board Resolution, at any time, with respect to such Securities, elect to have Section 1402 (if applicable) or Section 1403 (if applicable) be applied to such Outstanding Securities upon compliance with the conditions set forth below in this Article.
SECTION 1402. Defeasance and Discharge.
Upon their exercise of the above option applicable to this Section with respect to any Securities of or within a series, each of the Company and the Guarantor shall be deemed to have been discharged from their respective obligations with respect to such Outstanding Securities and under the Guarantee in respect thereof on the date the conditions set forth in Section 1404 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Company and the Guarantor shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities and under the Guarantee in respect thereof which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 1405 and the other Sections of this Indenture referred to in clauses (A) and (B) of this Section, and to have satisfied all its other obligations under such Securities and under the Guarantee in respect thereof and this Indenture insofar as such Securities and the Guarantee in respect thereof are concerned (and the Trustee, at the expense of the Company and the Guarantor shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder:
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(A) the rights of Holders of such Outstanding Securities to receive, solely from the trust fund described in Section 1405 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities when such payments are due, (B) the Company’s and the Guarantor’s obligations to the Trustee under Section 606 with respect to such Securities under Sections 305, 306, 1002 and 1003 and with respect to the payment of Additional Amounts, to the extent then unknown, on such Securities as contemplated by Section 1005, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this Article Fourteen. Subject to compliance with this Article Fourteen, the Company or the Guarantor may exercise its option under this Section notwithstanding the prior exercise of its option under Section 1403 with respect to such Securities.
SECTION 1403. Covenant Defeasance.
Upon the Company’s or the Guarantor’s exercise of the above option applicable to this Section with respect to any Securities of or within a series, the Company and the Guarantor shall be released from their respective obligations under Sections 1006 and 1007, and, if specified pursuant to Section 301, its obligations under any other covenant, with respect to such Outstanding Securities and the Guarantee in respect thereof on and after the date the conditions set forth in Section 1404 are satisfied (hereinafter, “covenant defeasance”), and such Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with Sections 1006 and 1007, or such other covenant, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities, the Company and the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section or such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 501(5) or 501(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities and the Guarantee in respect thereof shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1402 or Section 1403 to any Outstanding Securities of or within a series and the Guarantee in respect thereof:
(a) The Company or the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 607 who shall agree to comply with the provisions of this Article Fourteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (1) an amount (in such Currency in which such Securities are then specified as payable at Stated Maturity), or
79
(2) Government Obligations applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Securities, money in an amount, or (3) a combination thereof in an amount, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) and interest, if any, and any Additional Amounts then known on such Outstanding Securities on the Stated Maturity of such principal or installment of principal or interest and (ii) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities. Before such a deposit, the Company or the Guarantor, as the case may be, may give to the Trustee, in accordance with Section 1102 hereof, a notice of its election to redeem all or any portion of such Outstanding Securities at a future date in accordance with the terms of the Securities of such series and Article Eleven hereof, which notice shall be irrevocable. Such irrevocable redemption notice, if given, shall be given effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor is a party or by which it is bound.
(c) No Default or Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit or, insofar as Sections 501(6) and 501(7) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (1) the Company or the Guarantor has received from, or there has been published by, the Internal Revenue Service a ruling, or (2) since the date of execution of this Indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the beneficial owners of such Outstanding Securities will not recognize income, gain or loss for United States federal income tax purposes as a result of such defeasance and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.
(e) In the case of an election under Section 1403, the Company or the Guarantor shall have delivered to the Trustee Opinions of Counsel to the effect that the beneficial owners of such Outstanding Securities will not recognize income, gain or loss for United States federal income tax purposes as a result of such covenant defeasance and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
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(f) The Company or the Guarantor shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance under Section 1402 or the covenant defeasance under Section 1403 (as the case may be) have been complied with.
(g) Notwithstanding any other provisions of this Section, such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or the Guarantor in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 1405, the “Trustee”) pursuant to Section 1404 in respect of any Outstanding Securities of any series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company or the Guarantor acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section 301, if, after a deposit referred to in Section 1404(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 312(b) or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 1404(a) has been made in respect of such Security, or (b) a Conversion Event occurs as contemplated in Section 312(d) or 312(e) or by the terms of any Security in respect of which the deposit pursuant to Section 1404(a) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any) and interest and Additional Amounts, if any, on such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on the applicable Market Exchange Rate for such Currency in effect on the second Business Day prior to each payment date, except, with respect to a Conversion Event, for such Currency in effect (as nearly as feasible) at the time of the Conversion Event.
The Company or the Guarantor, as the case may be, shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 1404 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities.
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Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the Company Request, or the Guarantor, as the case may be, upon the Guarantor Request, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in Section 1404 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Article.
Article
Fifteen
MEETINGS OF HOLDERS OF SECURITIES
[Intentionally omitted]
Article
Sixteen
GUARANTEE OF SECURITIES
SECTION 1601. Guarantee.
This Section 1601 and Section 1602 apply to the Securities of any series to the extent that the form of the Guarantee to be endorsed on such Securities is not otherwise specifically established as contemplated by Section 301.
The Guarantor hereby unconditionally guarantees to each Holder of a Security of each series authenticated and delivered by the Trustee the due and punctual payment of the principal (including any amount due in respect of original issue discount) of and any premium and interest on and Additional Amounts with respect to such Security, and the due and punctual payment of any sinking fund payments provided for pursuant to the terms of such Security, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder, in accordance with the terms of such Security and of this Indenture. The Guarantor hereby agrees that its obligations hereunder shall be as if it were a principal debtor and not merely a surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Security of any series or this Indenture, any failure to enforce the provisions of any Security of any series or this Indenture, any waiver, modification, consent or indulgence granted to the Company with respect thereto, by the Holder of any Security of any series or the Trustee, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, the benefit of discussion, protest or notice with respect to any Security or the indebtedness evidenced thereby or with respect of any sinking fund payment required pursuant to the terms of a Security issued under this Indenture and all demands whatsoever, and covenants that this Guarantee will not be discharged with respect to any Security except by payment in full of the principal thereof and any premium and interest or Additional Amounts thereon or as provided in Article Four, Section 802 or Article Fourteen. The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, the Maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby.
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This Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment on any Company Security, in whole or in part, is rescinded or must otherwise be restored to the Company or the Guarantor upon the bankruptcy, liquidation or reorganization of the Company or otherwise.
The Guarantor hereby waives, in favor of the Holders and the Trustee, any and all of its rights, protections, privileges and defenses provided by any applicable law to a guarantor and waives any right of set-off which the Guarantor may have against the Holder of a Security in respect of any amounts which are or may become payable by the Holder of a Security to the Company.
The Guarantor shall be subrogated to all rights of each Holder of Securities against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and any premium and interest on all the Securities of the same series and of like tenor shall have been paid in full.
The Guarantee shall be governed by and construed in accordance with the laws of the State of New York. The Guarantor agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holders in enforcing any rights under the Guarantee.
No past, present or future stockholder, officer, director, employee or incorporator of the Guarantor shall have any personal liability under the Guarantee set forth in this Section 1601 by reason of his or its status as such stockholder, officer, director, employee or incorporator.
The Guarantee set forth in this Section 1601 shall not be valid or become obligatory for any purpose with respect to a Security until the certificate of authentication on such Security shall have been signed by or on behalf of the Trustee.
SECTION 1602. Execution of Guarantee.
To evidence its Guarantee to the Holders specified in Section 1601, the Guarantor hereby agrees to execute the Guarantee in substantially the form set forth in Section 204 to be endorsed on each Security authenticated and delivered by the Trustee. The Guarantor hereby agrees that its Guarantee set forth in Section 1601 shall remain in full force and effect notwithstanding any failure to endorse on each Security such Guarantee. Each such Guarantee shall be signed on behalf of the Guarantor by any director of the Guarantor, prior to the authentication of the Security on which it is endorsed, and the delivery of such Security by the Trustee, after the due authentication thereof by the Trustee hereunder, shall constitute due delivery of the Guarantee on behalf of the Guarantor. Such signatures upon the Guarantee may be manual or facsimile signatures of any present, past or future such directors or officers and may be imprinted or otherwise reproduced below the Guarantee, and in case any such director or officer who shall have signed the Guarantee shall cease to hold such offices before the Security on which such Guarantee is endorsed shall have been authenticated and delivered by the Trustee or disposed of by the Company, such Security nevertheless may be authenticated and delivered or disposed of as though the person who signed the Guarantee had not ceased to hold such office of the Guarantor.
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This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.
| SASOL FINANCING USA LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
| SASOL LIMITED | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature page to Indenture]
| WILMINGTON SAVINGS FUND SOCIETY, FSB | ||
| as Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature page to Indenture]
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
[Intentionally omitted]
| A-1-1 |
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that based solely on written certifications that we have received in writing, by tested telex or by electronic transmission from each of the persons appearing in our records as persons entitled to a portion of the principal amount set forth below (our “Member Organizations”) substantially in the form attached hereto, as of the date hereof, [U.S.$]__________ principal amount of the above-captioned Securities (i) is owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source (“United States person(s)”), (ii) is owned by United States person(s) that are (a) foreign branches of United States financial institutions (financial institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(iv) are herein referred to as “financial institutions”) purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such financial institution has agreed, on its own behalf or through its agent, that we may advise [Name of Issuer] or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
As used herein, “United States” means the United States of America (including the states and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for exchange (or, if relevant, collection of any interest) any portion of the temporary global Security representing the above-captioned Securities excepted in the above-referenced certificates of Member Organizations and (ii) as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of any interest) are no longer true and cannot be relied upon as of the date hereof.
| A-2-1 |
We understand that this certification is required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the Exchange Date or the relevant Interest Payment Date occurring prior to the Exchange Date, as applicable]
[EUROCLEAR BANK S.A./N.V., as Operator of the Euroclear System] [CLEARSTREAM] | ||
| By: | ||
| A-2-2 |
Exhibit 4.2
FORM OF GLOBAL NOTE
[FACE OF GLOBAL NOTE]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SASOL FINANCING USA LLC
[·]% Notes due 20[·]
Guaranteed By
SASOL LIMITED
| No. [001] | $[·] | ||
| CUSIP No. [·] | |||
| ISIN No. [·] |
SASOL FINANCING USA LLC, a Delaware limited liability company (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of $[·] on [·], 20[·] and to pay interest thereon from [·] or from the most recent Interest Payment Date (as defined below) to which interest has been paid or duly provided for, semi-annually in arrears on [·] and [·] in each year, commencing [·] (each, an “Interest Payment Date”), at the rate of [·]% per annum, until principal hereof is paid or made available for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Note is registered at the close of business on [·] and [·] each, a “Regular Record Date” for such interest. Any such interest which is payable, but is not punctually paid or duly provided for, on such Interest Payment Date will forthwith cease to be payable to such Holder on the relevant Regular Record Date by virtue of having been such Holder, and such defaulted interest and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in this Note may be paid by the Company or the Guarantor, at its election, in each case, as provided in the Indenture.
| B-1 |
Interest on this Note shall be computed on the basis of a 360-day year of twelve 30-day months.
Payment of the principal of, and interest, if any, on this Note will be made at the office or agency of the Company maintained for that purpose in Wilmington, Delaware, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee or an Authenticating Agent by manual signature of an authorized signatory, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
| B-2 |
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed manually or in facsimile.
Dated: [·]
| SASOL FINANCING USA LLC | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| B-3 |
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Dated:______________
This is one of the Notes of the series designated therein referred to in the within mentioned Indenture.
| WILMINGTON SAVINGS FUND SOCIETY, FSB, as Trustee | ||
| By ___________________ | ||
| Authorized Signatory |
| 4 |
FORM OF GUARANTEE
For value received, SASOL LIMITED, a corporation duly organized and existing under the laws of South Africa (herein called the “Guarantor”, which term includes any successor Person under the Indenture (the “Indenture”) referred to in the Note on which this Guarantee is endorsed), has unconditionally guaranteed, pursuant to the terms of the Guarantee contained in Article Sixteen of the Indenture, the due and punctual payment of the principal of and any premium and interest on such Note, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, in accordance with the terms of such Note and the Indenture.
All payments pursuant to this Guarantee shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of South Africa, the United States or the jurisdiction of organization of any successor to the Company or the Guarantor, or any political subdivision or taxing authority thereof or therein, unless such taxes, duties, assessments or governmental charges are required by the Republic of South Africa, the United States or such other jurisdiction or any such subdivision or authority to be withheld or deducted. In that event, the Guarantor will pay such Additional Amounts as will result (after deduction of such taxes, duties, assessments or governmental charges and any additional taxes, duties, assessments or governmental charges payable in respect of such) in the payment to the Holder of the Note on which this Guarantee is endorsed of the amounts which would have been payable in respect of the Guarantee thereof had no such withholding or deduction been required, subject to certain exceptions as set forth in Article Ten of the Indenture.
The obligations of the Guarantor to the Holders of the Notes and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Sixteen of the Indenture, and reference is hereby made to such Article and Indenture for the precise terms of the Guarantee.
The Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Note upon which this Guarantee is endorsed shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized signatories.
Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Indenture.
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IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed.
| Dated: | |
| SASOL LIMITED | |
| By: ____________________________ | |
| Name: | |
| Title |
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[REVERSE OF GLOBAL NOTE]
This Note is one of a duly authorized issue of securities of the Company (herein called the “Note”), issued and to be issued in one or more series under an Indenture, dated as of [•], 20[•] (herein called the “Indenture” which term shall have the meaning assigned to it in such instrument), among the Company, Sasol Limited, as Guarantor (herein called the “Guarantor”, which term includes any successor Person under the Indenture) and Wilmington Savings Fund Society, FSB, as Trustee (herein called the “Trustee”, which term includes any other successor trustee under the Indenture) and reference is hereby made to the Indenture and the Officer’s Certificate dated as of [·], 20[·] issued pursuant to Section 301 of the Indenture (herein called the “20[•] Officer’s Certificate”) for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee, and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. This Note is one of the series designated on the face hereof, initially limited in aggregate principal amount to $[·].
The Company may, without the consent of the holders of the Notes of any series, issue additional notes of one or more series having the same ranking and same interest rate, maturity date redemption terms and other terms as the Notes except for the price to the public and issue date, provided, however, that no additional notes may be issued unless they are fungible with the notes for U.S. federal income tax purposes. Any additional notes, together with the Notes, will constitute a single series of securities under the Indenture. There is no limitation on the amount of the Notes or other debt securities that the Company may issue under the Indenture.
The Notes will be unsecured and unsubordinated indebtedness of the Company and will rank equally with all of its other unsecured and unsubordinated indebtedness from time to time outstanding.
The Notes of this series are issuable only in registered form without coupons in minimum denominations of $200,000 and integral multiples of $1,000 in excess thereof. The Notes will initially be issued in the form of one or more global Notes (each, a “Global Note”). Except as provided in the Indenture, a Global Note shall not be exchangeable for one or more definitive Notes.
If an Event of Default with respect to Notes of this series occurs and is continuing, the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Notes of this series may declare the principal of all of the Notes of this series to be due and payable in the manner and with the effect provided in the Indenture.
If an Event of Default with respect to the Notes occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of the Notes of this series and related coupons by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in the Indenture or in aid of the exercise of any power granted therein, or to enforce any other proper remedy.
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All payments of, or in respect of, principal of and any premium and interest on any Note of this series, and all payments pursuant to any Guarantee, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of a Taxing Jurisdiction, unless such taxes, duties, assessments or governmental charges are required by such Taxing Jurisdiction to be withheld or deducted. In that event, the Company or the Guarantor, as applicable, will pay such additional amounts of, or in respect of, principal and any premium and interest (“Additional Amounts”) as will result (after deduction of such taxes, duties, assessments or governmental charges and any additional taxes, duties, assessments or governmental charges payable in respect of such) in the payment to each Holder of Notes of the amounts which would have been payable in respect of such Notes or the Guarantees thereof, as the case may be, had no such withholding or deduction been required, except that no Additional Amounts shall be so payable for or on account of:
(1) any tax, duty, assessment or other governmental charge imposed by any government of any jurisdiction other than a Taxing Jurisdiction;
(2) any tax, duty, assessment or other governmental charge which would not have been imposed but for (A) the existence of any present or former connection between such Holder, or a third party on behalf of such Holder, or beneficial owner of a Note by reason of its having some present or former connection with a Taxing Jurisdiction other than as a result of holding a Note or enforcing its rights thereunder (including, but not limited to, being or having been a citizen, resident or national of a Taxing Jurisdiction or being or having been engaged in a trade or business or present therein or having or having had a permanent establishment therein, but not including the mere holding or ownership of a debt security), or (B) the presentation of such Note for payment more than 30 days after the date on which such payment became due or was provided for, whichever is later;
(3) any estate, inheritance, gift, sale, transfer, personal property, value added, excise or similar tax, duty, assessment or other governmental charge;
(4) any tax, duty, assessment or other governmental charge which is payable otherwise than by withholding or deduction from payments of (or in respect of) principal or interest on the Notes or the Guarantees thereof;
(5) any tax, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure to accurately comply by the Holder or the beneficial owner of a Note with a request of the Company or the Guarantor addressed to the Holder (A) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (B) to make any claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by statute, treaty, regulation or administrative practice of the Taxing Jurisdiction as a precondition to exemption from or reduction in all or part of such tax, assessment or other governmental charge;
(6) any tax, assessment or other governmental charge imposed, deducted or withheld pursuant to section 1471(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) or otherwise imposed pursuant to sections 1471 through 1474 of the Code, in each case, as of the date of issuance any series of Notes (and any amended or successor version that is substantially comparable), any current or future regulations or agreements thereunder, official interpretations thereof or similar law or regulation implementing an intergovernmental agreement relating thereto;
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(7) any tax, assessment or other governmental charge imposed by reason of the Holder’s past or present status as a passive foreign investment company, a controlled foreign corporation, a foreign tax exempt organization or a personal holding company with respect to the United States of America or as a corporation that accumulates earnings to avoid U.S. federal income tax;
(8) any tax, assessment or other governmental charge imposed on interest received by (A) a 10% shareholder (as defined in section 871(h)(3)(B) of Code, and the regulations promulgated thereunder) of the Company or (B) a controlled foreign corporation that is related to the Company within the meaning of section 864(d)(4) of the Code, or (C) a bank receiving interest described in section 881(c)(3)(A) of the Code, to the extent such tax, assessment or other governmental charge would not have been imposed but for the Holder’s status as described in clauses (A) through (C);
(9) in the case of a Holder that is a U.S. Person (as defined in Article Ten of the Indenture), the amount of any withholding tax or deduction, or any similar tax, imposed by the United States or a political subdivision thereof; or
(10) any combination of items (1), (2), (3), (4), (5), (6), (7), (8) and (9).
Additionally, Additional Amounts shall not be paid with respect to any payment in respect of any Note to any Holder who is a fiduciary or partnership or any person other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner of such payment would not have been entitled to such Additional Amounts had it been the Holder of such Note.
References herein to the payment of the principal of or any premium or interest on, or in respect of, any Note of this series (or any payments pursuant to the Guarantee thereof) such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions herein and express mention of the payment of Additional Amounts in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
The provisions herein shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future taxes, assessments or governmental charges of whatever nature of any jurisdiction in which any successor Person to the Company or the Guarantor is organized or tax resident.
The Notes of this series are redeemable at the option of the Company or the Guarantor (or their successors) in whole but not in part at any time (except in the case of Notes that have a variable rate of interest, which may be redeemed on any interest payment date), if: (i) the Company or the Guarantor would be required to pay Additional Amounts, as a result of any change in the tax laws or treaties (including the official application or interpretation thereof) of a Taxing Jurisdiction or, in the case of a treaty, to which a Taxing Jurisdiction is a party that, in the case of the Company or the Guarantor, becomes effective on or after the date of issuance of this series (or, in the case of a successor, that becomes effective after the date such successor becomes such), as explained in Section 1005 of the Indenture, or (ii) there is a change in the official application or interpretation of a treaty to which a Taxing Jurisdiction is a party, this change is proposed and becomes effective on or after a date on which one of the affiliates of the Company borrows money from the Company, and because of the change this affiliate would be required to deduct or withhold tax on payments to the Company to enable the Company to make any payment of principal, premium, if any, or interest.
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In both of these cases, however, the Company will not be permitted to redeem a series of Notes if the Company or the Guarantor can avoid either the payment of Additional Amounts, or deductions or withholding, as the case may be, by using reasonable measures available to it. For the avoidance of doubt, reasonable measures shall not include changing the jurisdiction of incorporation of the Company or Guarantor.
Except in the case of outstanding original issue discount Notes, which may be redeemed at the redemption price specified by the terms of that series of Notes, the redemption price will be equal to the principal amount plus accrued interest to the date of redemption.
Prior to the giving of notice of such redemption, the Company will deliver to the Trustee an Officer’s Certificate, stating that the Company is entitled to effect such redemption and setting forth in reasonable detail a statement of circumstances showing that the conditions precedent to the right of the Company to redeem such Notes pursuant to the Indenture have been satisfied.
Prior to [•], 20[•] (the “Par Call Date”), the Company or the Guarantor may redeem the Notes of this series in whole or in part, at its option at any time and from time to time at a Redemption Price equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum of the present values of the Remaining Scheduled Payments of principal and interest on the Notes (excluding any portion of such payments of interest accrued or unpaid as of the date of the redemption), assuming for such purpose that the Notes of this series mature on the Par Call Date, discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, plus the Make-whole Spread, plus, in each case, accrued and unpaid interest on the principal amount of the Notes of this series to be redeemed to the Redemption Date.
On or after the Par Call Date, the Company or the Guarantor may redeem the Notes of this series in whole (but not in part), at its option at any time at a Redemption Price equal to 100% of the principal amount of the Notes plus, in each case, accrued and unpaid interest on the principal amount of the Notes of this series to be redeemed to the Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual equivalent yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
“Comparable Treasury Issue” means the U.S. Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of the Notes, assuming for such purpose that the Notes mature on the Par Call Date.
“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.
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“Comparable Treasury Price” means, with respect to any Redemption Date, (A) the average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Company obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Reference Treasury Dealer” means each of [•], [•], or their respective affiliates that are primary U.S. Government securities dealers and two other primary U.S. Government securities dealers in New York City selected by the Company, and their respective successors; provided, however, that if any of the foregoing or their affiliates shall cease to be a primary U.S. Government securities dealer in New York City, the Company shall substitute therefor another such primary U.S. Government securities dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Guarantor, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Company by such Reference Treasury Dealer at 3:30 p.m. New York City time on the third business day preceding such Redemption Date.
“Make-whole Spread” means [•] basis points.
The Company will mail notice of any redemption at least 10 days but not more than 60 days before the Redemption Date to each Holder of the Notes of this series to be redeemed or the Trustee shall be requested to send such notice of redemption to each holder of Notes to be redeemed in the name of the Company at its expense. If fewer than all of the Notes of this series are to be redeemed, the Notes of this series to be redeemed shall be selected by the Trustee by lot or any other such method as the Trustee deems to be fair and appropriate.
Unless the Company or the Guarantor defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes or portions thereof called for redemption.
If a Change of Control Repurchase Event occurs in respect of the Notes of this series, unless either the Company or the Guarantor has exercised its right to redeem in whole the then-outstanding Notes of this series of notes as described above, the Company will make an offer to each Holder of the Notes of this series to repurchase all or any part (in minimal denominations of $200,000 and integral multiples of $1,000 in excess thereof) of that Holder’s Notes of this series at a repurchase price in cash equal to 101 % of the aggregate principal amount of the Notes of this series plus any accrued and unpaid interest on the Notes repurchased to, but not including, the date of repurchase. Within 30 days following any Change of Control Repurchase Event or, at the option of the Company, prior to any Change of Control, but after the public announcement of the proposed Change of Control, the Company will mail a notice to each Holder, with a copy to the Trustee,
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describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase the Notes of this series on the payment date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed, other than as may be required by law. The notice shall, if mailed prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on a Change of Control Repurchase Event occurring on or prior to the payment date specified in the notice. Holders of the Notes of this series electing to have Notes of this series purchased pursuant to a Change of Control Repurchase Event offer will be required to surrender their Notes of this series, with the form entitled “Option of Holder to Elect Purchase” on the reverse of this Note completed, to the Paying Agent at the address specified in the notice, or transfer their Notes of this series to the Paying Agent by book-entry transfer pursuant to the applicable procedures of the Paying Agent, prior to the close of business on the third business day prior to the repurchase payment date. The Company will comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934, as amended, (the “Securities Exchange Act”) and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Notes of this series as a result of a Change of Control Repurchase Event. To the extent that the provisions of any applicable securities or corporate laws or regulations conflict with the Change of Control Repurchase Event provisions of the Notes of this series, the Company will comply with the applicable securities or corporate laws and regulations and will not be deemed to have breached its obligations under the Change of Control Repurchase Event provisions of the Notes of this series by virtue of such conflict.
On the repurchase date following a Change of Control Repurchase Event, the Company will, to the extent lawful:
(1) accept for payment all Notes of this series or portions of the Notes of this series properly tendered pursuant to its offer;
(2) deposit with the Paying Agent an amount equal to the aggregate purchase price in respect of all the Notes of this series or portions of Notes of this series properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes of this series properly accepted, together with an Officer’s Certificate stating the aggregate principal amount of Notes of this series being purchased by the Company.
The Paying Agent will promptly mail to each Holder of Notes of this series properly tendered the purchase price for the Notes of this series (or make payment through the Depositary), and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note of this series equal in principal amount to any unpurchased portion of any Notes of this series surrendered; provided, however, that each new Note of this series will be in a minimum principal amount of $200,000 and integral multiples of $1,000 in excess thereof.
The Company will not be required to make an offer to repurchase the Notes of this series issued by it upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and such third party purchases all Notes of this series properly tendered and not withdrawn under its offer.
“Change of Control” means the occurrence of any of the following:
(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger, scheme of arrangement, amalgamation or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Guarantor and its subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act) other than to the Guarantor or one of its subsidiaries;
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(2) the consummation of any transaction (including, without limitation, any merger, scheme of arrangement, amalgamation or consolidation) the result of which is that any “person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act) (other than a subsidiary of the Guarantor) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act), directly or indirectly, of more than 50% of the combined voting power of the Guarantor’s Voting Stock or other Voting Stock into which the Guarantor’s Voting Stock is reclassified, consolidated, exchanged or changed measured by voting power rather than number of shares;
(3) the Guarantor consolidates with, or merges with or into, or enters into a scheme of arrangement with or amalgamates with, any “person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act), or any person consolidates with, or merges with or into, or enters into a plan or arrangement with, the Guarantor, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Guarantor or such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Voting Stock of the Guarantor outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person or any direct or indirect parent company of the surviving person immediately after giving effect to such transaction; or
(4) the adoption of a plan relating to the liquidation or dissolution of the Guarantor.
Notwithstanding the foregoing, a transaction will not be deemed to involve a change of control if (1) the Guarantor becomes a direct or indirect wholly-owned subsidiary of a holding company and (2)(A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Guarantor’s Voting Stock immediately prior to that transaction or (B) immediately following that transaction, no “person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act) (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
“Change of Control Repurchase Event” means the occurrence of both a Change of Control and a Rating Event.
“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s); a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P); and the equivalent Investment Grade credit rating from any additional Rating Agency or Rating Agencies selected by the Guarantor as a replacement rating agency or replacement ratings agencies.
“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“Rating Agency” means each of Moody’s and S&P; provided, however, that if either Moody’s or S&P ceases to rate the Notes of this series or fails to make a rating of the Notes of this series publicly available for reasons outside of the Guarantor’s control, the Guarantor may select (as certified by a resolution of the Guarantor’s board of directors) a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Securities Exchange Act, as a replacement agency for Moody’s or S&P, or both of them, as the case may be.
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“Rating Category” means (i) with respect to S&P, any of the following categories: BBB, BB, B, CCC, CC, C and D (or equivalent successor categories) and (ii) with respect to Moody’s, any of the following categories: Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories). In determining whether the rating of the Notes of this series has decreased by one or more gradations, gradations within rating categories (+ and – for S&P; 1, 2 and 3 for Moody’s; or the equivalent gradations for another rating agency) shall be taken into account (e.g., with respect to S&P, a decline in a rating from BB+ to BB, as well as from BB- to B+, will constitute a decrease of one gradation).
“Rating Date” means the date that is 60 days prior to the earlier of (1) the occurrence of a change of control; or (2) the public notice of the intention by Sasol to effect a change of control.
“Rating Event” means the occurrence of the events in (A) or (B) of this definition on any date during the 60-day period (which period shall be extended so long as the rating of the Notes of this series is under publicly announced consideration for a possible downgrade by any of the rating agencies) after the earlier of (1) the occurrence of a Change of Control; or (2) the public notice of the intention by Sasol to effect a Change of Control if (A) the Notes of this series are rated on the Ratings Date by each Rating Agency as Investment Grade, the rating of the Notes of this series shall be reduced so that the Notes of this series are rated below Investment Grade by at least one Rating Agency, or (B) the Notes of this series are rated on the Ratings Date below Investment Grade by at least one Rating Agency, the rating of the Notes of this series by at least one Rating Agency shall be reduced by one or more gradations (including gradations within rating categories, as well as between rating categories). Notwithstanding the foregoing, a Rating Event otherwise arising by virtue of a particular reduction in rating shall not be deemed to have occurred in respect of a particular Change of Control (and thus shall not be deemed a Rating Event for purposes of the definition of Change of Control Repurchase Event hereunder) if (i) the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the trustee or Sasol in writing at its request that the reduction was the result, in whole or in part, of the applicable Change of Control (whether or not the applicable Change of Control shall have occurred at the time of the Rating Event) or (ii) the rating of the Notes of this series by the Rating Agency making the reduction in rating to which this definition would otherwise apply is within the relevant 60-day period subsequently upgraded to an Investment Grade rating.
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and its successors.
“Voting Stock” of any specified “person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act) as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.
The Indenture contains provisions for defeasance at any time of the entire indebtedness on this Note upon compliance by the Company with certain conditions set forth thereon, which provisions apply to this Note.
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The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company or the Guarantor and the rights of the Holders of the Notes to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Notes at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Notes of each series at the time Outstanding, on behalf of the Holders of all Notes to waive compliance by the Company or the Guarantor with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
As set forth in, and subject to, the provisions of the Indenture, no Holder of any Note of this series or any related coupon shall have any right to institute any proceeding, judicial or otherwise, with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (i) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Notes of this series; (ii) the Holders of not less than 25% in principal amount of the Outstanding Notes of this series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee; (iii) such Holder or Holders offer to the Trustee indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request; (iv) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (v) no direction inconsistent with such written request has been given to the Trustee during such 60−day period by the Holders of a majority in principal amount of the Outstanding Notes of this series; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of the Indenture to affect, disturb or prejudice the rights of any other such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under the Indenture, except in the manner provided in the Indenture and for the equal and ratable benefit of all such Holders of Notes of this series.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, or the Guarantor which is absolute and unconditional, to pay the principal of, and interest, if any, on this Note at the time, place and rate, and in the coin or currency, herein prescribed or to convert this Note as provided in the Indenture.
No service charge shall be made for any such registration of transfer or exchange, but the Company, the Guarantor, or the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentation of this Note for registration of transfer, the Company, the Guarantor, the Trustee, and any agent of the Company or the Guarantor or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Company, the Guarantor, the Trustee, or any such agent shall be affected by notice to the contrary. None of the Company, the Guarantor, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Note in global form or for maintaining, supervising or reviewing any records relating to
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such beneficial ownership interests. Nothing shall prevent the Company, the Guarantor, the Trustee from giving effect to any written certification, proxy or other authorization furnished by any depositary, as a Holder, with respect to such global Note or impair, as between such depositary and owners of beneficial interests in such global Note, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such global Note.
This Note shall be governed by and construed in accordance with the laws of the State of New York.
Unless otherwise defined herein, all terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture or the 20[·] Officer’s Certificate. To the extent any provision of this Note conflicts with the express provisions of the Indenture or the 20[·] Officer’s Certificate, the provisions of the Indenture or the 20[·] Officer’s Certificate shall govern and be controlling.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to the Change of Control Repurchase Event provisions of this Note, check the following box:
☐ Purchase pursuant to Change of Control Repurchase Event
If you want to elect to have only part of this Note purchased by the Company pursuant to the Change of Control Repurchase Event provisions of this Note, state the amount:
$_________________
| Date:____________________ | Your Signature: _____________________ (Sign exactly as your name appears on the other side of the Note) |
Signature Guarantee: ____________________________________
Signature must be guaranteed by a participant
in a recognized signature guarantee medallion
program or other signature guarantor acceptable
to the Trustee.
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SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Note shall be $[·]. The following decreases/increases in the principal amount of this Note have been made:
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Date of Decrease/Increase |
Decrease in Principal Amount |
Increase in Principal Amount |
Total Principal Amount Following such Decrease/Increase |
Notation Made by or on Behalf of Trustee |
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| 18 |
Exhibit 5.1
 |
|
9 Appold Street +44.20.7655.5000 |
September 22, 2021
The Board of Directors
Sasol Limited
Sasol Place, 50 Katherine Street
Sandton 2196
South Africa
The Board of Directors
Sasol Financing USA LLC
12120 Wickchester Lane
Houston, Texas 77079
United States
Sasol Limited
Sasol Financing USA LLC
Registration Statement on Form F-3ASR
Ladies and Gentlemen:
We have acted as counsel for Sasol Limited, a public company incorporated the laws of the Republic of South Africa (the “Company”), and Sasol Financing USA LLC, a limited liability company organized under the laws of the State of Delaware (the “Issuer”), in connection with the registration statement on Form F-3 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the offering from time to time, as set forth in the prospectus (the “Prospectus”) contained in the Registration Statement and as to be set forth in one or more supplements to the Prospectus (each such supplement, a “Prospectus Supplement”) of (i) debt securities of the Issuer (the “Debt Securities”) and (ii) the Company’s guarantees of the Debt Securities (the “Guarantees”). In that connection, we have reviewed originals or copies of the following documents:
| (a) | The Registration Statement. |
| (b) | The Prospectus. |
| (c) | The form of indenture among the Issuer, as issuer, the Company, as guarantor, and Wilmington Savings Fund Society, FSB, as trustee (the “Indenture”). |
| (d) | The form of the Debt Securities. |
| (e) | The form of the Guarantees. |
| SHEARMAN.COM |
| We operate in the UK and Italy as Shearman & Sterling (London) LLP, a limited liability partnership organised in the United States under the laws of the state of Delaware, which laws limit the personal liability of partners. Shearman & Sterling (London) LLP is authorised and regulated by the solicitors regulation authority (firm sra number 211340). A list of all partners’ names, which includes solicitors and registered foreign lawyers, is open for inspection at the above address. Each partner of Shearman & Sterling (London) LLP is also a partner of Shearman & Sterling LLP. |
Page 2
| (f) | Originals or copies of such other records of the Company and the Issuer, certificates of public officials and officers of the Company and the Issuer and agreements and other documents as we have deemed necessary as a basis for the opinions expressed below. |
In our review, we have assumed:
| (a) | The genuineness of all signatures. |
| (b) | The authenticity of the originals of the documents submitted to us. |
(c) The conformity to authentic originals of any documents submitted to us as copies.
(d) As to matters of fact, the truthfulness of the representations made in certificates of public officials and officers of the Company and the Issuer.
(e) That the Indenture will be the legal, valid and binding obligation of each party thereto, other than the Company and the Issuer, enforceable against each such party in accordance with its terms and that the Indenture will be governed by and construed in accordance with the law of the State of New York.
| (f) | That: |
(i) The Company is an entity duly organized and validly existing under the laws of the jurisdiction of its organization.
(ii) The Company has and will have power and authority (corporate or otherwise) to execute, deliver and perform, and will have duly authorized, executed and delivered the Indenture.
(ii) The execution, delivery and performance by each of the Company and the Issuer of the Indenture do not and will not:
| (A) | contravene the Company's Memorandum of Incorporation or Memorandum and Articles of Association, as the case may be, or other organizational documents; or |
| (B) | except with respect to Generally Applicable Law, violate any law, rule or regulation applicable to it. |
| (g) | That the execution, delivery and performance by the Company and the Issuer of the Indenture do not and will not result in any conflict with or breach of any agreement or document binding on any of them. |
| (h) | That, except with respect to Generally Applicable Law, no authorization, approval, consent or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery or performance by the Company and the Issuer of the Indenture or, if any such authorization, approval, consent, action, notice or filing is required, it has been or will be duly obtained, taken, given or made and is or will be in full force and effect. |
Page 3
We have not independently established the validity of the foregoing assumptions.
“Generally Applicable Law” means the federal law of the United States of America, and the law of the State of New York (including in each case the rules or regulations promulgated thereunder or pursuant thereto), that a New York lawyer exercising customary professional diligence would reasonably be expected to recognize as being applicable to the Company, the Issuer, the Indenture or the transactions governed by the Indenture, and, for purposes of assumption paragraphs (f) and (h) above and our opinions in paragraphs 1 and 2 below, the Limited Liability Company Act of the State of Delaware with respect to the Issuer. Without limiting the generality of the foregoing definition of Generally Applicable Law, the term “Generally Applicable Law” does not include any law, rule or regulation that is applicable to the Company, the Issuer, the Indenture or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to the Indenture or any of its affiliates due to the specific assets or business of such party or such affiliate.
Based on the foregoing and upon such other investigation as we have deemed necessary and subject to the qualifications set forth below, we are of the opinion that:
1. The Issuer is a limited liability company validly existing and in good standing under the law of the State of Delaware.
2. The Issuer (a) has the limited liability company power to execute, deliver and perform the Indenture and (b) has taken all limited liability company action necessary to authorize the execution, delivery and performance of the Indenture.
3. When (i) the registration requirements of the Securities Act have been complied with, (ii) the Indenture has been qualified under the Trust Indenture Act of 1939, as amended, (iii) the Indenture has been duly executed and delivered by the parties thereto, (iv) the form or forms of the Debt Securities and the final terms thereof have been duly approved or established by appropriate limited liability company action taken by the Issuer and in accordance with the terms of the Indenture, and (v) the Debt Securities have been duly executed by the Issuer, authenticated by the trustee, issued and delivered against payment therefor in accordance with such limited liability company action and the Indenture, the Debt Securities will be the legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms and entitled to the benefits of the Indenture.
4. When (i) the registration requirements of the Securities Act have been complied with, (ii) the form of the Guarantees has been duly approved by appropriate corporate action taken by the Company, (iii) the Debt Securities have been duly executed, authenticated, issued and delivered against payment therefor as described in paragraph 3 above, and (iv) the Guarantees have been duly executed and delivered by the Company in accordance with such corporate action and the Indenture, the Guarantees will be the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
Page 4
Our opinions expressed above are subject to the following qualifications:
| (a) | Our opinions in paragraphs 3 and 4 above are subject to (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally (including without limitation all laws relating to fraudulent transfers) and (ii) possible judicial action giving effect to governmental actions or foreign laws affecting creditors’ rights. |
| (b) | Our opinions in paragraphs 3 and 4 above are also subject to the effect of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law). |
| (c) | Our opinions are limited to Generally Applicable Law, and we do not express any opinion herein concerning any other law. |
This opinion letter is rendered to you in connection with the filing of the Registration Statement with the SEC. This opinion letter may not be relied upon by you for any other purpose without our prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name under the heading “Legal Matters” in the Prospectus. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC promulgated thereunder.
This opinion letter speaks only as of the date hereof. We expressly disclaim any responsibility to advise you of any development or circumstance of any kind, including any change of law or fact, that may occur after the date of this opinion letter and which might affect the opinions expressed herein.
| Very truly yours, | |
| /s/ Shearman & Sterling (London) LLP |
TI/EA/AP
Exhibit 5.2
 |
ENSafrica 35 lower Long Street Foreshore Cape Town South Africa 8001 P O Box 2293 Cape Town South Africa 8000 Docex 14 Cape Town tel +27 21 410 2500 info@ENSafrica.com |
opinion
|
Sasol Limited Sasol Place 50 Katherine Street Sandton 2196 SOUTH AFRICA
Sasol Financing USA LLC 12120 Wickchester Lane Houston, Texas 77079 UNITED STATES
|
CvL/DR/0494897
22 September 2021 |
our ref your ref date |
Ladies and Gentlemen
FILING BY SASOL LIMITED AND SASOL FINANCING USA LLC WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OF AUTOMATIC SHELF REGISTRATION STATEMENT ON FORM F-3 DATED 22 SEPTEMBER 2021 PURSUANT TO THE US SECURITIES ACT OF 1933
We have acted as South African legal advisers to Sasol Limited (registration no. 1979/003231/06) (the “Company”) in connection with the filing by the Company and the Issuer with the United States Securities and Exchange Commission (the “Commission”) of the automatic shelf registration statement on Form F-3 dated 22 September 2021 (the “Registration Statement”) pursuant to the US Securities Act of 1933 (the “Act”).
| 1. | Definitions |
In this opinion (“Opinion”):
| 1.1. | “CIPC” means the Companies and Intellectual Property Commission; |
| 1.2. | “Companies Act” means the Companies Act, 2008; |
| 1.3. | “Constitutional Documents” means the documents listed in paragraph 3.4; |
| 1.4. | “Duly Authorised” means, in respect of the Indenture or a Guarantee, as the case may be, that: |
| 1.4.1. | the entry into and performance by the Company of its obligations under the Indenture or that Guarantee, as the case may be; and |
| 2 |
| 1.4.2. | any financial assistance provided or distributions made by the Company as a consequence of the entry into or performance by it of its obligations under the Indenture or that Guarantee, as the case may be, |
have been authorised in accordance with the Companies Act and the Company’s memorandum of incorporation;
| 1.5. | “Duly Incurred” means, in respect of the Indenture or a Guarantee, as the case may be, that the Company has entered into and incurred its obligations under the Indenture or that Guarantee, as the case may be, within 120 business days of the board of the Company: |
| 1.5.1. | having acknowledged by resolution that it has applied the solvency and liquidity test as set out in section 4 of the Companies Act; and |
| 1.5.2. | having reasonably concluded that the Company will satisfy the solvency and liquidity test immediately after incurring its obligations under the Indenture or that Guarantee, as the case may be; |
| 1.6. | “FinSurv” means the Financial Surveillance Department of the South African Reserve Bank; |
| 1.7. | “FinSurv Approval” means, in respect of the Indenture or a Guarantee, as the case may be, the prior approval of FinSurv for the Company to enter into and perform its obligations under the Indenture or that Guarantee, as the case may be; |
| 1.8. | “Governing Jurisdiction” means the State of New York; |
| 1.9. | “Guarantee” means a guarantee on the terms set out in Section 1601 (Guarantee) of the Indenture in the form set out in Section 204 (Form of Guarantee) of the Indenture; |
| 1.10. | “Indenture” means the indenture in the form included as Exhibit 4.1 to the Registration Statement; and |
| 1.11. | “Issuer” means Sasol Financing USA LLC, a Delaware limited liability company. |
| 2. | Scope |
| 2.1. | This Opinion is given in respect of the questions of law expressly addressed in paragraph 5 and for no other purpose. It does not extend by implication or otherwise to any other matters. No opinion is expressed as to matters of fact. |
| 2.2. | This Opinion relates only to the laws of South Africa as interpreted by South African courts at 09h00 (Johannesburg time) on the date of this Opinion. We assume no obligation to advise the addressees or any other parties to whom this Opinion may be disclosed of any changes of law or fact which may occur after that time, notwithstanding that those changes may affect the legal analysis or conclusions contained in this Opinion. |
| 3 |
| 2.3. | This Opinion is given on the basis that it will be construed in accordance with South African law. Anyone relying on this Opinion agrees that this Opinion and all matters (including any liability) arising in any way from it are to be governed by South African law and will be subject to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Local Division. |
| 2.4. | Nothing in this Opinion shall be construed as tax advice. |
| 2.5. | We are legal advisers to the Company and provide this Opinion on its instructions. Our responsibility to any party to whom this Opinion is disclosed in connection with this Opinion and the transactions it contemplates is strictly limited to the express terms of this Opinion. We owe no fiduciary duty to nor are we in an attorney/client relationship with any party to whom this Opinion is disclosed in connection with this Opinion and those transactions, even if a party is a past or present client of this firm. Any special arrangements or retainers between us and any party to whom this Opinion is disclosed do not apply in connection with this Opinion and those transactions. |
| 3. | Documents |
For purposes of providing the opinions set out in this Opinion, we have examined and rely on:
| 3.1. | an executed copy of the Registration Statement; |
| 3.2. | a copy of the base prospectus dated 22 September 2021 which forms part of the Registration Statement with respect to the offering from time to time of the securities described in that prospectus (the “Base Prospectus”); |
| 3.3. | a copy of the Indenture; |
| 3.4. | copies of the following constitutional documents of the Company: |
| 3.4.1. | the Company’s certificate of incorporation dated 26 June 1979; |
| 3.4.2. | the Company’s certificate to commence business dated 26 June 1979; and |
| 3.4.3. | the Company’s memorandum of incorporation in the form amended on 27 November 2019; |
| 3.5. | a copy of the Company’s corporate certificate dated 22 September 2021 certifying, among other things, that the copies of its Constitutional Documents and resolutions delivered to us for purposes of this Opinion are complete, true, correct and in full force and effect; |
| 4 |
| 3.6. | a copy of an extract of the minutes of the meeting of the board of directors of the Company held on 13 August 2021; and |
| 3.7. | a copy of the submission made to the board of directors of the Company at the meeting described in paragraph 3.6. |
| 4. | Searches |
| 4.1. | We have relied on a company search conducted by us on 22 September 2021 of the electronic records maintained by the CIPC in respect of the Company. |
| 4.2. | We have assumed that the results of the search of the CIPC’s records fully and accurately reflect the information provided by the Company to the CIPC. We have not examined any documents that the Company may have filed with the CIPC other than where we have expressly stated otherwise in this Opinion. The information produced by the search may not be correct, complete or up to date. |
| 4.3. | We have not conducted any other searches or investigations for purposes of this Opinion. |
| 5. | Opinion |
Our opinion is as follows, subject to the assumptions in Schedule 1 and the qualifications in Schedule 2:
| 5.1. | The Company is duly incorporated as a company and exists under the laws in force in South Africa. |
| 5.2. | The Company: |
| 5.2.1. | has the legal power and capacity to enter into and to perform its obligations under the Indenture and a Guarantee; and |
| 5.2.2. | has taken all corporate action for it to enter into and perform its obligations under the Indenture and a Guarantee, |
provided that the Indenture and each Guarantee will need to be Duly Authorised and Duly Incurred.
| 5.3. | The Company’s signatories have been duly authorised by it and are able lawfully to execute the Indenture and a Guarantee on its behalf. |
| 5.4. | When executed by such number of the persons named in paragraphs 8 or 9.1 of the extract of the minutes of the meeting of the board of directors of the Company described in paragraph 3.6, the Indenture or a Guarantee, as the case may be, will have been duly executed by the Company in accordance with the requirements of South African law. |
| 5 |
| 5.5. | The entry by the Company into and the performance by it of its obligations under the Indenture or a Guarantee, as the case may be, will not contravene: |
| 5.5.1. | any law or regulation of South Africa applicable to companies generally which is binding on it; or |
| 5.5.2. | its Constitutional Documents, |
if the Indenture and the Guarantee have been Duly Authorised and Duly Incurred and FinSurv Approval has been obtained for the Indenture and the Guarantee.
| 5.6. | The Company does not require any authorisation from any South African court or governmental or regulatory authority to enter into or to perform its obligations under the Indenture or a Guarantee other than the prior approval of FinSurv. |
| 5.7. | South African courts will give effect to: |
| 5.7.1. | the choice of the laws of the Governing Jurisdiction as the governing law of the Indenture and a Guarantee subject to all the applicable pleading requirements; and |
| 5.7.2. | the submission by the Company in the Indenture to the jurisdiction of the courts of the Governing Jurisdiction in connection with the Indenture and a Guarantee, |
if the Indenture and the Guarantee have been Duly Authorised and Duly Incurred and FinSurv Approval has been obtained for the Indenture and the Guarantee.
| 5.8. | The High Court of South Africa will recognise as a valid judgment and without any review of its substance or merits, order the enforcement of a final judgment rendered by a superior court of the Governing Jurisdiction against the Company (which has submitted to the jurisdiction of the courts of the Governing Jurisdiction) with respect to its obligations under the Indenture or a Guarantee if the Indenture and the Guarantee have been Duly Authorised and FinSurv Approval has been obtained for the Indenture and the Guarantee. |
| 6. | Benefit |
| 6.1. | We are providing this Opinion: |
| 6.1.1. | in connection with the matters described in paragraph 2.1; |
| 6 |
| 6.1.2. | on the basis that it is required under item 601(b)(5) of Regulation S-K of the Act pursuant to the filing of the Registration Statement with the Commission; and |
| 6.1.3. | solely for use in connection with the filing of the Registration Statement with the Commission. |
It is not to be used or relied on for any other purpose.
| 6.2. | This Opinion is given strictly on the basis that (and it is recorded that, by virtue of having received this Opinion, each addressee and each other party to whom this Opinion is disclosed, has expressly agreed that): |
| 6.2.1. | ENSafrica’s total aggregate liability for any Claim whatsoever arising as a result of the opinions set out forth in this Opinion and/or the reliance on those opinions by any party shall be limited to and shall not exceed the amount recoverable by way of recourse against Edward Nathan Sonnenbergs Inc., its assets and its professional indemnity cover; and |
| 6.2.2. | as a stipulation for the benefit of each Individual, there shall be no recourse to and no Claims will be capable of being brought or instituted against an Individual in their personal capacity. |
For purposes of this paragraph:
| 6.2.3. | “Claim” means any claim, whether in contract, delict or tort (including negligence), for breach of statutory duty or otherwise; |
| 6.2.4. | “ENSafrica” means Edward Nathan Sonnenbergs Inc. or any other member of the group of ENSafrica undertakings; and |
| 6.2.5. | “Individual” means any director, officer, shareholder, member or employee of or consultant to ENSafrica from time to time. |
| 6.3. | Nothing contained in this Opinion shall be construed as: |
| 6.3.1. | limiting in any way our rights to contest, defend or oppose any claim brought against us; or |
| 6.3.2. | reducing or limiting the rights of our insurer in terms of our professional indemnity insurance (including without limitation any rights of subrogation or similar rights of our insurer); or |
| 7 |
| 6.3.3. | requiring us to act in a manner which may void, limit or reduce our professional indemnity cover or which may otherwise confer on our insurer a right to repudiate the claim made by us under our professional indemnity insurance in whole or in part. |
| 7. | Consent |
| 7.1. | We consent to: |
| 7.1.1. | the filing of this Opinion with the Commission as an exhibit to the Registration Statement; |
| 7.1.2. | the references to this Opinion in the Registration Statement; and |
| 7.1.3. | the references to Edward Nathan Sonnenbergs Inc. or ENSafrica in the sections of the Base Prospectus headed “Enforceability of Certain Civil Liabilities” and “Legal Matters”. |
| 7.2. | In giving this consent, we do not admit or concede that we are within the category of persons whose consent is required under section 7 of the Act or the rules or regulations of the Commission promulgated under the Act. |
| 7.3. | We are a privately incorporated company of lawyers admitted to practice in South Africa. Our lawyers are for purposes of the consent in this paragraph 7 and this Opinion, not admitted to practice in any jurisdictions other than South Africa. We do not hold ourselves out as being experts on the law of any jurisdiction other than the laws of South Africa. We do not express any opinion on the law of any jurisdiction other than the laws of South Africa. |
Yours faithfully
ENSAFRICA
Per: /s/ ENSAFRICA
CLINTON VAN LOGGERENBERG
| 8 |
Schedule 1
Assumptions
| 1. | All dates and signatures (including electronic signatures) on all documents submitted to us, whether original or copies, are genuine. |
| 2. | All documents submitted to us are authentic and complete, and have been duly submitted, where applicable, to the appropriate regulatory authority. |
| 3. | If we have reviewed a copy (including an electronic copy) of a document, it is a correct and complete copy of the original. |
| 4. | If we have reviewed only a draft of a document, it has been or will be executed in the form of that draft. |
| 5. | If we have reviewed a conformed copy of a document, each party actually executed the document in that form. |
| 6. | No documents reviewed for purposes of this Opinion have been amended or superseded between the time of their dating or certification (as applicable) and the date of this Opinion. The completeness and accuracy of a document will not be affected by the omission from that document of any page or part or the substitution of any page or part of that document. |
| 7. | The Constitutional Documents and resolutions listed in paragraph 3 of this Opinion remain in full force and effect. |
| 8. | There has not been and will not be any change in the status or condition of the Company as disclosed in the search referred to in paragraph 4 of this Opinion. |
| 9. | The Company executed and entered into the Registration Statement (including the Base Prospectus), and will execute and enter into the Indenture and any Guarantee, as principal, and not as trustee or agent or in any other capacity. |
| 10. | None of the parties to the Registration Statement (including the Base Prospectus), the Indenture or any Guarantees has taken or will take any action, nor are there or will there be any agreements or arrangements in existence between those parties, which would affect, amend or vary the terms of the transactions as set out in the Registration Statement (including the Base Prospectus), the Indenture or any Guarantee. |
| 11. | None of the parties to the Registration Statement (including the Base Prospectus), the Indenture or any Guarantee is or will be precluded by any agreement to which it is or will be a party from entering into or performing its obligations under the Registration Statement (including the Base Prospectus), the Indenture or any Guarantee. |
| 9 |
| 12. | The entry by the Company into and performance by it of its obligations under the Registration Statement (including the Base Prospectus), the Indenture or any Guarantee will not result in it exceeding any borrowing, indemnifying, guaranteeing or similar limits applicable to it which are not apparent from the documents reviewed for purposes of this Opinion. |
| 13. | The Company was solvent, was able to pay its debts as they became due in the ordinary course of business and was not “financially distressed” (as defined in the Companies Act) when and immediately after it entered into the Registration Statement (including the Base Prospectus). The Company will be solvent, will be able to pay its debts as they become due in the ordinary course of business and will not be “financially distressed” (as defined in the Companies Act) when and immediately after it enters into the Indenture or any Guarantee. The Company will not become insolvent, unable to pay its debts as they become due in the ordinary course of business or “financially distressed” as a result of performing its obligations under the Registration Statement (including the Base Prospectus), the Indenture or any Guarantee. |
| 14. | None of the parties to the Registration Statement (including the Base Prospectus), the Indenture or any Guarantee has taken or will take any corporate action or other steps in respect of, and no legal proceedings have been or will be started or threatened for, the liquidation, winding-up, business rescue, appointment of a business rescue practitioner or similar proceedings of or in respect of those parties or any of their assets. |
| 15. |
| 15.1. | The Company has complied and will comply with any internal procedures and rules in connection with the authorisation, entry into and performance by it of its obligations under the Registration Statement (including the Base Prospectus), the Indenture and any Guarantee. |
| 15.2. | All delegations of authority have been or will be validly made and remain in full force and effect. |
| 15.3. | There are and will be no defects of whatsoever nature in the appointment of any of the directors of the Company and those directors have accordingly been or will accordingly be duly appointed. |
| 15.4. | None of the directors of the Company is or will become an ineligible or disqualified person. |
| 15.5. | All relevant interests (including personal financial interests as defined in section 1 of the Companies Act) of directors and related persons (each as defined in section 75(1) of the Companies Act) were or will be disclosed at such time and in such a way to ensure compliance with section 75 of the Companies Act. |
| 10 |
| 15.6. | Board meetings, shareholder meetings and other meetings at which any resolutions, authorisations or mandates were or will be passed or adopted were or will be duly convened, quorate and held. |
| 15.7. | Any notices of meetings or matters to be decided on other than at a meeting were or will be correctly given to all persons required to receive those notices. |
| 16. | Each person who executed the Registration Statement (including the Base Prospectus), or who will execute the Indenture or any Guarantee, on behalf of the Company: |
| 16.1. | is actually a person named as an authorised signatory or authorised person in the resolution of the board of the Company authorising the entry into, execution of and performance under the Registration Statement (including the Base Prospectus), Indenture or Guarantee, as applicable; |
| 16.2. | actually holds the position they purport to hold; |
| 16.3. | actually signs in the capacity in which they purport to sign; and |
| 16.4. | where execution is by electronic signature, actually applied or will actually apply their electronic signature to the Registration Statement (including the Base Prospectus), the Indenture or the Guarantee, as the case may be. |
| 17. | No person has engaged or will engage in unconscionable, misleading or deceptive conduct (by act or omission) that might make any part of this Opinion incorrect. No person has engaged or will engage in any other conduct, and there are no facts or circumstances not evident from the face of the documents listed in paragraph 3 of this Opinion, that might make any part of this Opinion incorrect. None of the parties to the Registration Statement (including the Base Prospectus), the Indenture or any Guarantee is or will be on actual notice of any prohibition or restriction on any other party’s ability to enter into or perform under the Registration Statement (including the Base Prospectus), the Indenture or the Guarantee, as the case may be, and no party has deliberately refrained or will deliberately refrain from making inquiries in circumstances where it had any suspicion that such a prohibition or restriction may be applicable. None of the parties to the Registration Statement (including the Base Prospectus), the Indenture or any Guarantee have been or will be subject to or responsible for any duress or undue influence, misrepresentation, mistakes, corruption, collusion or any other circumstances that would in law render any provisions of the Registration Statement (including the Base Prospectus), the Indenture or the Guarantee, as the case may be, void or voidable or unenforceable. None of the parties to the Registration Statement (including the Base Prospectus), the Indenture or any Guarantee has entered into or will enter into those agreements primarily or substantially to defeat or reduce the effect of a prohibition or requirement established by or in terms of an unalterable provision of the Companies Act. |
| 11 |
| 18. | The Registration Statement (including the Base Prospectus) has been entered into and the Indenture and any Guarantee will be entered into: |
| 18.1. | in the ordinary course of business, in good faith, for bona fide commercial reasons and on arms’ length terms; and |
| 18.2. | without the intention of preferring one creditor above another or to defraud creditors. |
| 19. | None of the parties are or will be in breach of their obligations under the Registration Statement (including the Base Prospectus), the Indenture or any Guarantee. |
| 20. | All conditions precedent (other than delivery of this Opinion) have been or will be timeously fulfilled or waived. All conditions in any approvals of FinSurv will be complied with or timeously fulfilled, as applicable. |
| 21. | The accuracy, adequacy, completeness and correctness of: |
| 21.1. | all information supplied to us by the Company (including by its directors, officers, employees, representatives or agents); |
| 21.2. | any facts in the documents reviewed for purposes of this Opinion; and |
| 21.3. | any representations and warranties in the documents reviewed for purposes of this Opinion other than where those representations and warranties directly address questions of law on which we expressly opine in this Opinion. |
| 22. | Any registration requirements under the Act have been complied with. |
| 23. |
| 23.1. | The Registration Statement (including the Base Prospectus) has been or will be validly authorised and entered into by each party to it other than the Company. |
| 23.2. | The Indenture and each Guarantee will be: |
| 23.2.1. | Duly Authorised; |
| 23.2.2. | Duly Incurred; and |
| 23.2.3. | validly authorised and entered into by each party to it (including the Company). |
| 23.3. | The Indenture will be duly executed and delivered. The Indenture will be qualified under the Trust Indenture Act of 1939, as amended. |
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| 23.4. | Each Guarantee will be duly executed, authenticated and delivered in accordance with the Indenture. |
| 24. | Each of the Registration Statement (including the Base Prospectus), the Indenture and any Guarantee is binding on and enforceable against: |
| 24.1. | each party to it other than the Company under all applicable laws; and |
| 24.2. | the Company under all applicable laws other than South African law. |
| 25. | No foreign law affects the conclusions set out in this Opinion. Specifically: |
| 25.1. | neither the entry into the Registration Statement (including the Base Prospectus), the Indenture or any Guarantee by any party nor, if it is to be performed in a jurisdiction other than South Africa, its performance, will be illegal or invalid under the laws of that jurisdiction or contrary to public policy in that jurisdiction; and |
| 25.2. | the choice of the laws of the Governing Jurisdiction to govern the Registration Statement (including the Base Prospectus), the Indenture or any Guarantee, and the submission to courts of that jurisdiction, are not and will not be illegal or invalid under any applicable laws other than South African law, are and will be in good faith and are not and will not be contrary to public policy. |
| 26. | Any stamp duty or other documentary tax in connection with the Registration Statement (including the Base Prospectus), the Indenture or any Guarantee has been or will be paid. |
| 27. | None of the Registration Statement (including the Base Prospectus), the Indenture or any Guarantee or any transaction effected by any of them is or will be primarily or substantially intended to defeat or reduce the effect of a prohibition or requirement established by or in terms of an unalterable provision of the Companies Act. |
| 28. | The Company complies and will comply in all respects with the provisions of the Protection of Personal Information Act, 2013. |
We have not taken any steps to investigate, nor do we express any opinion on, whether the assumptions in this Opinion are correct, except as expressly stated in this Opinion. However, without making any inquiries beyond the steps stated in this Opinion, the people primarily responsible for the preparation of this Opinion (being Clinton van Loggerenberg and Dean Rose) are not actually aware that any of the assumptions are incorrect or misleading.
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Schedule 2
Qualifications
| 1. | Accuracy of information in the Registration Statement and Base Prospectus |
The Registration Statement and the Base Prospectus have been prepared by the Issuer who has accepted responsibility for the information contained in those documents. We have not investigated or verified the truth or accuracy of any information contained in the Registration Statement or the Base Prospectus, nor have we been responsible for ensuring that no material information has been omitted from those documents.
| 2. | Scope of obligations |
We express no opinion on any provision of the Registration Statement (including the Base Prospectus), the Indenture or any Guarantee that requires a person to do or not do something that is not clearly identified in the provision, or to comply with another document.
| 3. | Convention Penalties Act, 1962 (the “Conventional Penalties Act”) |
The Conventional Penalties Act provides, among other things, that:
| 3.1. | a creditor may not recover in respect of an act or omission which is the subject of a penalty stipulation both the penalty and damages or, except where the relevant contract expressly so provides, damages in lieu of the penalty; and |
| 3.2. | if upon the hearing of a claim for a penalty the court is of the view that the penalty is out of proportion to the prejudice suffered by the creditor by reason of the act or omission in respect of which the penalty was stipulated, the court may reduce the penalty to the extent it considers equitable in the circumstances. In determining the extent of that prejudice the court shall take into consideration not only the creditor’s proprietary interest but every other rightful interest which may be affected by the act or omission in question. |
| 4. | The Protection of Businesses Act, 1978 (the “Businesses Act”) |
Subject to the permission of the Minister of Economic Affairs (or the appropriate minister under whose portfolio the duties of the Minister of Economic Affairs may fall (currently the Minister of Trade, Industry and Competition)) in terms of the Businesses Act (if that Act is applicable), any judgment obtained in respect of the Indenture or a Guarantee in a court of competent jurisdiction outside South Africa will be recognised and enforced in accordance with the ordinary procedures applicable under South African law for the enforcement of foreign judgments, on condition that:
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| 4.1. | the judgment is final and conclusive and has not been superannuated (if an appeal is pending, the court may use its discretion to stay the proceedings pending the appeal); |
| 4.2. | the recognition and enforcement of the judgment is not against public policy in South African in that, among other things, the judgment was not obtained by fraud or rendered contrary to natural justice, and does not involve the enforcement of foreign penal or revenue laws; |
| 4.3. | the recognition and enforcement of the judgment does not contravene section 1A of the Businesses Act, which prohibits the payment of multiple or punitive damages; and |
| 4.4. | the foreign court in question had jurisdiction and is competent within its own jurisdiction according to applicable rules on conflicts of laws. In regard to these rules, for foreign judgments based on money claims the courts of South Africa recognise the jurisdiction and competence of a foreign court on the basis of: |
| 4.4.1. | the submission of the defendant, whether by agreement or by conduct, to the jurisdiction of the foreign court; or |
| 4.4.2. | the residence of the defendant in the area of the foreign court at the time of the commencement of the action. |
| 5. | Security for certain costs of legal proceedings |
| 5.1. | A foreign plaintiff (perigrinus) in a suit or action against the Company in South African courts may be required in terms of South African law to deposit security for certain costs of legal proceedings. |
| 5.2. | It may not be required to provide security for certain legal costs if at the time of the commencement of the suit or action: |
| 5.2.1. | the Convention Relating to Civil Procedures made at the Hague on 1 March 1954 has been duly ratified by the national legislature of South Africa and adopted into South African law and the plaintiff is considered (as a matter of South African law) to be a national of a contracting State of that Convention; or |
| 5.2.2. | the national legislature of South Africa has duly ratified and adopted into South African law a bilateral treaty between South Africa and a State which eliminates the requirement of security for those legal costs for suits or actions between nationals of the States party to the treaty on a reciprocal basis, and the plaintiff is considered (as a matter of South African law) to be a national of that other State. |
| 15 |
As at the date of this Opinion, South Africa has not ratified or adopted the Convention Relating to Civil Procedures made at the Hague on 1 March 1954 or the bilateral treaty contemplated in item 5.2.2.
| 6. | Execution of agreements outside South Africa |
Any signature on the Indenture or a Guarantee signed outside South Africa must be authenticated:
| 6.1. | if signed in the United Kingdom, by a notary public in the United Kingdom; or |
| 6.2. | if elsewhere, in accordance with the Uniform Rules of Court (of South Africa), |
in order for the document to be received in the courts of South Africa, unless the document is shown to the satisfaction of the court to have been actually signed by the person purporting to have signed the document. South African courts are typically satisfied by the production of confirmatory affidavits confirming that the relevant document was signed by the relevant person.
| 7. | Opinions as to governing law, submission to jurisdiction and enforcement of foreign judgments |
In relation to the opinions statements in paragraphs 5.7 and 5.8 of this Opinion:
| 7.1. | a South African court will not apply a foreign law if: |
| 7.1.1. | it is not pleaded and proved; or |
| 7.1.2. | the selection of the foreign law was not bona fide and legal; or |
| 7.1.3. | to do so would be contrary to public policy; or |
| 7.1.4. | it is a revenue, punitive or penal law; or |
| 7.1.5. | the foreign court exercised jurisdiction over the defendant solely by virtue of an attachment to found jurisdiction; |
| 7.2. | if any obligation is to be performed in a jurisdiction outside South Africa, it may not be enforceable in South Africa to the extent that performance would be illegal under the laws of the other jurisdiction or contrary to public policy in that other jurisdiction; |
| 7.3. | a South African court may take into account the law of the place of performance in relation to the manner of performance and to the steps to be taken in the event of defective performance; |
| 7.4. | although South African courts will apply the laws of the Governing Jurisdiction (the lex causa) as the substantive governing law of the Indenture and a Guarantee they will apply the law of South Africa (the lex fori) with regard to procedural matters; |
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| 7.5. | South African courts may re-examine the merits and evidence of a case finally settled in a foreign jurisdiction in some limited circumstances (extrinsic fraud, for example); |
| 7.6. | if there is a flaw in the foreign judgment that renders it a nullity under its own law, in principle that judgment will not be recognised by South African courts; and |
| 7.7. | under South African law, a court will not accept a complete ouster of jurisdiction, although generally it recognises party autonomy and gives effect to a choice of law. Jurisdiction however remains within the discretion of the court and a court may, in certain instances, assume jurisdiction provided there are sufficient jurisdictional connecting factors. Similarly the courts may, in rare instances, choose not to give effect to a choice of jurisdiction clause if the choice is contrary to public policy. |
| 8. | Exchange control |
| 8.1. | Although a judgment rendered by a South African court against the Company with respect to its payment obligations under the Indenture or a Guarantee may, if requested, be expressed in the currency in which the relevant amount is payable, the amount in the judgment awarded to a successful party outside South Africa would be required to be paid into a blocked account under the South African exchange control regulations unless or until permission is granted to make payment of that amount to the successful party outside South Africa either pursuant to a prior approval obtained for this purpose or pursuant to an approval obtained at the relevant time. The amounts awarded to successful South African parties would not be affected by this and would be directly payable to those successful parties. |
| 8.2. | Payment obligations that are contrary to the exchange control regulations of any country or economic union in whose currency the relevant amounts are payable may not be enforceable in South Africa. |
| 9. | General limitations on enforceability |
| 9.1. | A statement that an obligation is “binding” or “enforceable” means that the obligation is of a type and form that South African courts will generally enforce. It does not mean that the obligations and the rights of a creditor with respect to it can be enforced, or that the obligation is binding, in all circumstances. For example, enforcement is subject to, among other things: |
| 9.1.1. | laws affecting creditors’ rights generally including insolvency laws and laws pertaining to business rescue; |
| 9.1.2. | general principles of public policy, fairness and equity; |
| 9.1.3. | competition laws; |
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| 9.1.4. | sanctions laws; and |
| 9.1.5. | laws of prescription and set-off (claims may become time-barred or may be or become subject to defences of set-off or counterclaim). |
| 9.2. | Any provision in an agreement which confers, purports to confer, or waives a right of set-off or similar rights may be ineffective against a liquidator, business rescue practitioner or creditor of a party to that agreement. |
| 9.3. | Any provision in an agreement which constitutes or purports to constitute a restriction on the exercise of any statutory power by any party to the agreement or any other person may be ineffective. |
| 9.4. | A provision in an agreement which provides that a matter is to be determined by future agreement or negotiation may be unenforceable or void for uncertainty under South African law. |
| 9.5. | A provision in an agreement which provides that the agreement constitutes the sole or whole record of the agreement between the contracting parties, or that a contracting party will not be bound by any express or implied term, representation, warranty, promise or the like not recorded in the agreement, will not exclude a South African court’s obligation to take a contextual approach to the interpretation of that agreement. |
| 9.6. | The effectiveness of a provision in an agreement which allows an invalid provision to be severed in order to save the remainder of the agreement will be determined by South African courts in their discretion. |
| 9.7. | A South African court may determine in its discretion that parties to an agreement are able to amend that agreement orally despite any provisions to the contrary. |
| 9.8. | South African courts may not enforce a provision in an agreement that limits a fundamental constitutional right of a South African contracting party. In determining the constitutional validity of contractual provisions, South African courts will have regard to (i) public policy considerations including whether the contractual provision is fair and reasonable in content and with reference to its enforcement in the relevant circumstances, (ii) competing rights such as the common law right of freedom of contract and (iii) the relative bargaining positions of the contracting parties. |
| 9.9. | The power of a South African court to order specific performance of an obligation or to grant injunctive relief is discretionary. If an order for specific performance of a payment obligation in a foreign currency is sought, notwithstanding that the agreement in question stipulates that those obligations are payable in that foreign currency, the court in exercising its discretion in regard to specific performance may not give the order in that currency. |
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| 9.10. | Generally, certificates as evidence of indebtedness issued by a creditor to a debtor or as to other facts are subject to inquiry under South African law. Provisions in agreements which render the records of one party or a certificate issued by one party conclusive proof of the matters stated in the certificate have been found to be against public policy by the courts of South Africa. |
| 9.11. | A determination, designation or calculation by a party to an agreement as to any matter provided for in agreement may in certain circumstances be held by the South African courts not to be final, conclusive or binding (for example, if it could be shown to have an arbitrary basis or not to have been reached in good faith) notwithstanding the provisions of the agreement. |
| 9.12. | Provisions that a defaulting party will pay all of the innocent party’s legal costs of taking action are not enforced by South African courts and the general rules relating to party-and-party, attorney-and-client and attorney-and-own-client costs are applied. |
| 9.13. | South African law may require that parties act reasonably or in good faith in their dealings with each other, including, without limitation, in exercising rights, powers or discretions or forming opinions. |
| 9.14. | The effectiveness of terms releasing or exculpating any party from or limiting or excluding a liability or duty otherwise owed may be limited by law in South Africa. |
| 9.15. | It is uncertain under South African law whether the parties to a contract can agree in advance the governing law of claims connected with the contract but which are not claims under the contract, such as claims in delict (tort). |
Exhibit 5.3
|
ENSafrica The MARC | Tower 1 129 Rivonia Road Sandton Johannesburg South Africa 2196 P O Box 783347 Sandton South Africa 2146 Docex 152 Randburg tel +2711 269 7600 info@ENSafrica.com |
| Sasol Limited | Witness Makhubele | our ref |
| 50 Katherine Street | your ref | |
| Sandton | 22 September 2021 | date |
| South Africa | ||
| 2196 |
Dear Sir/Madam
SASOL LIMITED: FORM F-3 REGISTRATION STATEMENT PURSUANT TO THE U.S. SECURITIES ACT OF 1933, DATED 22 SEPTEMBER 2021
| 1. | INTRODUCTION |
| 1.1. | We, Edward Nathan Sonnenbergs Incorporated (Registration No. 2006/018200/21) (“ENSafrica” or “we”), have acted as external South African legal adviser to Sasol Limited (“Sasol”) in connection with the filing by it, with the U.S. Securities and Exchange Commission (the “Commission”), of the Form F-3 registration statement dated 22 September 2021 (the “Registration Statement”), which Registration Statement:- |
| 1.1.1. | includes the base prospectus dated 22 September 2021, to be supplemented by one or more prospectus supplements; |
| 1.1.2. | is in respect of the registration of (i) an indeterminate principal amount of Sasol ordinary shares (the “SOL Shares”) and (ii) an indeterminate number of rights which may be exercised to subscribe for SOL Shares (the “Rights”); and |
| 1.1.3. | is filed pursuant to the U.S. Securities Act of 1933. |
| 1.2. | Capitalised terms used but not otherwise defined herein shall have the meanings ascribed thereto in the Registration Statement. |
| 1.3. | In connection with this opinion (this “Opinion”), we have:- |
| 1.3.1. | examined an executed copy of the Registration Statement (together with the base prospectus dated 22 September 2021); |
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| 1.3.2. | relied upon and examined:- |
| 1.3.2.1. | an extract of the minutes of the meeting of the board of directors of Sasol (“Directors”) held on 13 August 2021 (together with a copy of the submission made to the Directors at the aforesaid meeting), pursuant to which, inter alia, - |
| 1.3.2.1.1. | Sasol is authorised to execute and file the Registration Statement with the Commission and enter into, to the extent required, execute and/or file and/or deliver, and perform its obligations under the Documents (as defined in the extracts of the minutes of the meeting of the Directors) to which it is party; and |
| 1.3.2.1.2. | the Authorised Persons (as defined in the extracts of the minutes of the meeting of the Directors) are authorised, on behalf of Sasol, to: |
| 1.3.2.1.2.1. | file the Registration Statement with the Commission; |
| 1.3.2.1.2.2. | negotiate and settle all the terms and conditions of, sign and enter into, and to the extent required, file and/or deliver the Documents or any powers of attorney which may be reasonably required or necessary in connection with the entry into, to the extent required, execution and/or filing and/or delivery of, performance under and implementation of the Documents and the implementation of the transactions and matters contemplated by these resolutions |
| 1.3.2.1.2.3. | appoint any person (or a director or officer of such a person) determined by an Authorised Person to act as Sasol’s agent for service of process/process agent in the United States under or in connection with the Documents to which Sasol is party; |
| 3 |
| and/or Sasol’s authorised representative in the United States in connection with the Documents to which Sasol is party and to authorise the person so appointed to generally do everything reasonably required or necessary: (i) to file the Registration Statement or otherwise in connection with that filing; and (ii) for the entry into, to the extent required, execution and/or filing and/or delivery of, performance under and implementation of the Documents and the implementation of the transactions and matters contemplated by the Directors resolutions; |
| 1.3.2.2. | the constitutive documents of Sasol, being Sasol’s Memorandum of Incorporation in the form amended on 27 November 2019 and Certificate of Incorporation dated 26 June 1979 (“Constitutive Documents”), |
(collectively, the “Authorising Documents”); and
| 1.3.3. | relied upon and examined a copy of the report produced by an electronic search of the records of the South African Companies and Intellectual Property Commission (“CIPC”) carried out in respect of Sasol on 22 September 2021. |
| 2. | OPINIONS |
| 2.1. | Based upon our examination of all the documents and information referred to in paragraph 1.3 above, and subject to the assumptions, reservations and qualifications as described in paragraph 3 below, it is our opinion that:- |
| 2.1.1. | Sasol is a limited liability company duly incorporated and validly existing under the laws of South Africa; |
| 2.1.2. | Sasol has corporate power and authority to enter into and perform its obligations under the Registration Statement, has validly executed the Registration Statement to which it is a party and the execution and performance thereof has been duly authorised by the Directors and do not violate the applicable laws of South Africa now in effect; |
| 4 |
| 2.1.3. | the entering into the Registration Statement by Sasol and the performance by Sasol of its obligations thereunder do not and will not conflict with, or result in a breach of, any of the terms or provisions of any of Sasol’s Constitutive Documents as presently constituted; |
| 2.1.4. | the Authorised Persons who signed the Registration Statement on behalf of Sasol are authorised by Sasol to sign the Registration Statement and to act in connection with the Registration Statement; |
| 2.1.5. | the obligations of Sasol arising or which may from time to time arise pursuant to the:- |
| 2.1.5.1. | Registration Statement; and |
| 2.1.5.2. | SOL Shares and Rights, in each case subject to paragraphs 2.1.6 to 2.1.7 below, as the case may be, |
constitute the legal, valid and binding obligations of Sasol, enforceable against Sasol in accordance with their terms, except as such enforcement may be limited by applicable insolvency, liquidation, business rescue, curatorship, reorganisation or other similar laws affecting the enforcement of creditors’ rights generally;
| 2.1.6. | when the SOL Shares to which the Registration Statement relates have been (i) duly authorised and duly authorised to be issued by the Sasol shareholders, (ii) duly issued in accordance with the Companies Act, 2008 (“Companies Act”) and the Memorandum of Incorporation of Sasol (“Sasol MOI”), and (iii) duly paid for, the SOL Shares will be duly and validly issued, fully paid and non-assessable; |
| 2.1.7. | when the Rights to which the Registration Statement relates, have been (i) duly authorised, (ii) duly issued in accordance with the relevant provisions of the Companies Act and the Sasol MOI, the Rights will be duly and validly issued under South African law. |
| 3. | ASSUMPTIONS, RESERVATIONS AND QUALIFICATIONS |
The opinions contained herein are subject to the following assumptions, reservations and qualifications (and those contained elsewhere in this Opinion):-
| 3.1. | The opinions contained herein are given as of the date hereof. We express no opinion as to the laws of any jurisdiction other than the laws of South Africa. This Opinion is limited to the laws and regulations in effect in South Africa on and as of the date of this Opinion and is given on the basis that it will be governed and construed in accordance with South African law applicable as at the date hereof. |
| 5 |
| No obligation is assumed to update this Opinion or to inform any person of any changes in South African law or other matters coming to our knowledge and occurring after the date hereof, which may affect this Opinion in any respect. This Opinion encompasses only the matters expressly dealt with herein and its ambit may not be extended by implication or otherwise to deal with or encompass any other matters. |
| 3.2. | This Opinion assumes in relation to the Registration Statement:- |
| 3.2.1. | that the SOL Shares will be duly authorised, issued and paid for (or consideration thereon will be duly received by Sasol), all in accordance with the Companies Act and the Sasol MOI; |
| 3.2.2. | that the term “non-assessable”, as contemplated in paragraph 2.1.6 above, means, for purposes of this Opinion, that a holder of the SOL Shares will not, solely because of its status as holder of the SOL Shares, be liable, to Sasol or the creditors of Sasol, for any additional assessments or calls in respect of the SOL Shares; |
| 3.2.3. | that the SOL Shares to which the Rights relate, will be duly authorised, issued and paid for, all in accordance with the relevant provisions of the Companies Act and the Sasol MOI; |
| 3.2.4. | that all legal and administrative formalities in relation to the authorisation and issue of the SOL Shares, including, but not necessarily limited to, the endorsement, by the relevant authority, of the share certificates of the SOL Shares as “non-resident”, will be complied with; |
| 3.2.5. | the authenticity of each signatory’s signature to the Registration Statement; |
| 3.2.6. | the legal capacity of all signatories, and that persons purporting to hold particular offices or to sign any document in particular capacity to hold those offices or fill those capacities; |
| 3.2.7. | that there is an absence of any fraud or mistake in contract on the part of the parties to the Registration Statement and, where applicable, their respective officers, employees, agents and advisors when entering into the Registration Statement; |
| 3.2.8. | the due execution of the Registration Statement by the parties thereto; |
| 3.2.9. | the completeness and conformity of the original Registration Statement to the copies of the Registration Statement supplied to us; |
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| 3.2.10. | that the Registration Statement and Authorising Documents as reviewed by us have not been superseded, amended or novated in any respect; |
| 3.2.11. | that each of the parties to the Registration Statement (other than Sasol) has, in accordance with the laws of the jurisdiction in which such party is incorporated:- |
| 3.2.11.1. | the capacity, power and authority; |
| 3.2.11.2. | fulfilled all internal authorisation procedures and applicable formalities; and |
| 3.2.11.3. | obtained all necessary agreements, consents, licenses or qualifications (whether as a matter of any law or regulation applicable to it or as a matter of any contract binding upon it), |
to enter into the Registration Statement and to perform their respective obligations thereunder;
| 3.2.12. | that none of the parties to the Registration Statement has adopted any resolution or taken any action that would affect in any respect any of the opinions expressed herein; |
| 3.2.13. | that none of the parties to the Registration Statement (other than Sasol, to the extent indicated in any report produced by a search of the records of CIPC) has passed a resolution approving its voluntary winding up, no petition has been presented or order made by a court for the winding up, dissolution, business rescue proceedings or other administration of such parties, nor has any receiver, liquidator, business rescue practitioner or similar officer been appointed in relation to such parties or in relation to any of the assets or revenues of such parties; |
| 3.2.14. | that all authorisations constituted by the written resolution referred to in paragraph 1.3.2.1 and the delegation of all authorities under and/or in respect thereof have been validly made and remain in full force and effect, the Directors have been duly appointed, the Directors duly disclosed any personal financial interests as required by section 75 of the Companies Act (and duly complied with the provisions of that section to the extent applicable) and all such Director resolutions have been duly passed in accordance with the applicable provisions of the Companies Act and the Sasol MOI; |
| 3.2.15. | that all exchange control approvals will, if and when required, be obtained by Sasol; |
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| 3.2.16. | that the copies of the Constitutive Documents and resolutions delivered to us for purposes of this Opinion were true, complete, in full force and effect and up-to-date in all respects and have not been amended, superseded or novated in any respect; |
| 3.2.17. | that the transactions contemplated by and the obligations assumed under the Registration Statement are for the benefit of the parties thereto and that no person has been, or will be, engaged in conduct that is misleading or deceptive or likely to mislead or deceive in relation thereto and no disposition of property effected by any Offering Document is made wilfully to defeat an obligation owed to a creditor or at an undervalue in violation of the applicable laws of South Africa now in effect; |
| 3.2.18. | that there are no provisions of the laws of any jurisdiction outside South Africa which invalidate the choice of New York law by the parties to the Registration Statement; |
| 3.2.19. | that the Registration Statement is valid and binding on each party under the laws of any jurisdiction other than South Africa; |
| 3.2.20. | that there are no agreements, documents or arrangements in existence between the parties to the Registration Statement which materially affect, amend or vary the terms of the transactions contemplated under the Registration Statement; |
| 3.2.21. | that there are no provisions of the laws of any jurisdiction outside South Africa which would be contravened by the execution or delivery of the Registration Statement, and that, insofar as any obligation expressed to be incurred under the Registration Statement is to be performed in or is otherwise subject to the laws of any jurisdiction outside South Africa, its performance will not be illegal or ineffective by virtue of the laws of that jurisdiction; |
| 3.2.22. | that Sasol is not insolvent or unable to pay its debts as they fall due and will not become insolvent or unable to pay its debts as they fall due as a result of its entry into the Registration Statement and performance of the transactions contemplated therein; |
| 3.2.23. | that none of the parties to the Registration Statement has taken any corporate action or other steps, and no legal proceedings have been started or threatened, for the liquidation, winding up, sequestration or similar proceedings, as the case may be, in any relevant jurisdiction in respect of any of the parties to the Registration Statement. |
| 3.3. | Any foreign judgment obtained in respect of the Registration Statement will, subject to the obtaining of the permission of the Minister of Trade, Industry and Competition of South Africa (if the Protection of Businesses Act, 1978 (Act No. 99 of 1978) (the “Businesses Act”) is applicable), be recognised and enforced in accordance with the ordinary procedures applicable under South African law for the enforcement of foreign judgments, provided that:- |
| 8 |
| 3.3.1. | the judgment is final and conclusive and the judgement has not been superannuated or, if an appeal is pending, the court may use its discretion to stay the proceedings pending the appeal; |
| 3.3.2. | the recognition and enforcement of the judgment is not against public policy in that, among other things, the judgment was not obtained by fraud or rendered contrary to natural justice, and does not involve the enforcement of foreign penal or revenue laws; |
| 3.3.3. | the recognition and enforcement of the judgment does not contravene section 1A of the Businesses Act, which prohibits the payment of multiple or punitive damages; |
| 3.3.4. | the foreign court in question had jurisdiction and international competence according to the principles recognised by the laws of South Africa and, in regard to these principles, and foreign judgments based on money claims, the courts of South Africa recognise jurisdiction and international competence on the basis of the submission, whether by agreement or by conduct, of the defendant to the jurisdiction of the foreign court or the residence of the defendant in the area of the foreign court at the time of the commencement of the action. |
| 3.4. | South Africa has enacted the International Arbitration Act, 2017 (Act No. 15 of 2017) (“International Arbitration Act”) which provides for the enforcement of foreign arbitration awards in South Africa and which also provides for the incorporation of the Model Law on International Commercial Arbitration, as adopted by the United Nations Commission on International Trade Law, into South African law. In terms of section 16 of the International Arbitration Act, any foreign arbitration award (including an award obtained in respect of the Registration Statement) will be recognised and enforced in South Africa, provided that a party seeking the recognition or enforcement of a foreign arbitral award must produce:- |
| 3.4.1. | the original award and the original arbitration agreement in terms of which an award was made, authenticated in a manner in which foreign documents must be authenticated to enable them to be produced in any court, or certified copy of that award and of that agreement; and |
| 3.4.2. | a sworn translation of the arbitration agreement or arbitral award authenticated in a manner in which foreign documents must be authenticated for production in court, if the agreement or award is in a language other than one of the official languages of South Africa, provided that the court may accept other documentary evidence regarding the existence of the foreign arbitral award and arbitration agreement as sufficient proof where the court considers.it appropriate to do so. |
| 9 |
| 3.5. | In terms of section 18 of the International Arbitration Act a court may only refuse to recognise or enforce a foreign arbitral award if: |
| 3.5.1. | the court finds that— |
| 3.5.1.1. | a reference to arbitration of the subject matter of the dispute is not permissible under the law of South Africa; or |
| 3.5.1.2. | the recognition or enforcement of the award is contrary to the public policy of South Africa; or |
| 3.5.2. | the party against whom the award is invoked, proves to the satisfaction of the court that— |
| 3.5.2.1. | a party to the arbitration agreement had no capacity to contract under the law applicable to that party; |
| 3.5.2.2. | the arbitration agreement is invalid under the law to which the parties have subjected it, or where the parties have not subjected it to any law, the arbitration agreement is invalid under the law of the country in which the award was made; |
| 3.5.2.3. | that a party did not receive the required notice regarding the appointment of the arbitrator or of the arbitration proceedings or was otherwise not able to present his or her case; |
| 3.5.2.4. | the award deals with a dispute not contemplated by, or not falling within the terms of the reference to arbitration, or contains decisions on matters beyond the scope of the reference to arbitration, subject to the provisions of section 18(2) of International Arbitration Act; |
| 3.5.2.5. | the constitution of the arbitration tribunal or the arbitration procedure was not in accordance with the relevant arbitration agreement or, if the agreement does not provide for such matters, with the law of the country in which the arbitration took place; or |
| 3.5.2.6. | the award is not yet binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made. |
| 10 |
| 3.6. | The South African courts will not apply a foreign law if:- |
| 3.6.1. | it is not pleaded and proved; or |
| 3.6.2. | the selection of the foreign law was not bona fide and legal; or |
| 3.6.3. | to do so would be contrary to public policy. |
| 3.7. | In respect of any suit or action by any counterparty against Sasol in South African courts, such counterparty, as a foreign plaintiff or perigrinus:- |
| 3.7.1. | may be required in terms of South African law to deposit security for certain legal costs in respect of legal proceedings instituted in the courts of South Africa; |
| 3.7.2. | may not be required to provide security for certain legal costs if at the time of commencement of such suit or action, under South African law, such counterparty is considered to be a national of:- |
| 3.7.2.1. | a contracting State of the Convention Relating to Civil Procedures made at the Hague on 1 March 1954, which convention has, at the time of commencement of such suit or action, been duly ratified by the national legislature of South Africa and adopted into South African law; or |
| 3.7.2.2. | a State that has entered into a bilateral treaty with South Africa that eliminates the requirement of security for such legal costs in respect of suits or actions between nationals of State parties to the bilateral treaty on a reciprocal basis, which bilateral treaty has, at the time of commencement of such suit or action, been duly ratified by the national legislature of South Africa and adopted into South African law. |
| 3.8. | As at the date hereof, South Africa has not ratified or adopted the Convention Relating to Civil Procedures made at the Hague on 1 March 1954 or the bilateral treaty contemplated in paragraph 3.7.2.2 above. |
| 3.9. | Any signature on the Registration Statement signed outside South Africa must be authenticated:- |
| 3.9.1. | if signed in England, by a notary public in England; or |
| 3.9.2. | if elsewhere, in accordance with the Uniform Rules of the High Court of South Africa, |
in order for the document to be received in the courts of South Africa unless the document is shown to the satisfaction of the court to have been actually signed by the person purporting to have signed such document.
| 11 |
| 3.10. | Under South African law, a court will not accept a complete ouster of jurisdiction, although generally it recognises party autonomy and gives effect to a choice of law. However, jurisdiction remains within the discretion of the court and a court may, in certain instances, assume jurisdiction provided there are sufficient jurisdictional connecting factors. Similarly, the courts may, in rare instances, choose not to give effect to a choice of jurisdiction clause, if such choice is contrary to public policy. |
| 3.11. | The position under South African law currently accepted by commentators (there being no case law on this point) is that parties to a contract cannot agree in advance to the governing law of claims connected with the contract but which are not claims under the contract, such as claims in delict (tort). |
| 3.12. | South African courts have determined that parties to a contract (including the Registration Statement) would not be able to amend it by oral agreement if the contract provides that it can only be amended by written agreement between the parties. |
| 3.13. | South African company law is governed by statute and by common law. The Companies Act and the Companies Regulations (published under section 223 of the Companies Act) have replaced the Companies Act, 1973 (the “Old Companies Act”) in its entirety, except for Chapter 14 thereof, that deals with the winding-up of companies. The views expressed in this Opinion are based on our interpretation of the Companies Act (read with the applicable provisions of the Old Companies Act) as at the date of this Opinion. |
| 3.14. | Winding-Up and Insolvency |
| 3.14.1. | Under South African law, the winding-up of companies is regulated by both the Old Companies Act (and in the case of voluntary winding up and business rescue by the Companies Act) and the Insolvency Act, 1936 (the “Insolvency Act”). |
| 3.14.2. | The effect of the Companies Act, the Old Companies Act and the Insolvency Act (together with any other South African laws regulating the enforcement of creditors’ rights generally) is such that if any party to the Registration Statement, if that party is governed by South African law, is subject to winding up, then the party may not have the power, capacity and authority to conclude the Registration Statement, as the power, capacity and authority of the party may be limited or affected by bankruptcy, insolvency, reorganisation, moratorium, fraudulent conveyance and other similar laws (including constitutional laws and court decisions) including, without limitation, limitations introduced by way of equitable principles and public policy. |
| 12 |
| 3.14.3. | The further effect of the Companies Act, the Old Companies Act and the Insolvency Act and any other South African laws regulating the enforcement of creditors’ rights generally is such that it may not be possible for the parties to enforce the rights conferred by the Registration Statement to the full extent contemplated therein as the enforceability of such Registration Statement may be limited or affected by bankruptcy, insolvency, business rescue proceedings, reorganisation, moratorium, fraudulent conveyance and other similar laws (including court decisions) now or hereafter in effect, including without limitation, limitations introduced by way of equitable principles. Accordingly, as used in this Opinion, the term “enforceable” means that each of the obligations of Sasol under the Registration Statement is of a type and form enforced by the courts of South Africa. It is not certain, however, that each such obligation will be enforced in accordance with its terms in every circumstance, enforcement being subject to, among other things:- |
| 3.14.3.1. | the laws affecting creditors’ rights generally including, but not limited to, insolvency laws; |
| 3.14.3.2. | the laws of prescription and set-off, pursuant to which claims may become time-barred or may be or may become subject to defences of set-off or counterclaim; |
| 3.14.3.3. | where obligations are to be performed in a jurisdiction outside South Africa, they may not be enforceable in South Africa to the extent that performance would be illegal under the laws of the other jurisdiction or contrary to public policy in such other jurisdiction; |
| 3.14.3.4. | payment obligations that are contrary to the exchange control regulations of any country or economic union in whose currency the relevant amounts are payable may not be enforceable in South Africa; |
| 3.14.3.5. | enforcement may be limited to the extent that matters in respect of which it has been expressly assumed herein will be done, have not been done; |
| 3.14.3.6. | enforcement of obligations may be invalidated by reason of fraud, duress, misrepresentation, or undue influence; |
| 3.14.3.7. | matters of procedure upon enforcement of the Registration Statement will be governed by and determined in accordance with the law of the forum where such enforcement takes place; |
| 13 |
| 3.14.3.8. | principles of equity and the doctrine of the South African courts in enforcing equitable remedies and principles of public policy. |
| 3.14.4. | Under the Companies Act, a company may be wound up (i) voluntarily (a creditors’ voluntary winding-up or a shareholders’ voluntary winding up) by way of a special resolution of the shareholders of the company or (ii) by the court by way of a court order. Any report produced by a search of the records of CIPC will not reveal (i) any special resolution which has been passed by the shareholders of a company for a creditors’ or a shareholders’ voluntary winding-up of the company which has not been filed with CIPC, (ii) any order made by a court for the liquidation, winding-up or business rescue of a company of which CIPC has not been notified, or (iii) any petition presented to a court for the liquidation, winding-up or business rescue of a company. In regard to sub-paragraph (ii) it should be noted that there may be a delay of more than six months before an order made by a court for the liquidation, winding-up or business rescue of a company is notified to CIPC. |
| 3.15. | To the extent that any matter is expressed to be determined by future agreement or negotiation, the relevant provision may be unenforceable or void for uncertainty under South African law. |
| 3.16. | The effectiveness of any provision of any Offering Document which allows an invalid provision to be severed in order to save the remainder of such Offering Document will be determined by the South African courts in their discretion. |
| 3.17. | Any provision in the Registration Statement that a person shall not exercise a right or obligation conferred or imposed on that person by South African law, is subject to considerations of South African public policy. There is authority in South African law to indicate that persons may not contract in violation of South African law made for the benefit of the public. |
| 3.18. | South African courts may not enforce a provision of the Registration Statement that limits a constitutional right of a South African contract party. In determining the constitutional validity of contractual provisions, South African courts will have regard to, amongst other things, (i) public policy considerations, including whether the contractual provision is fair and reasonable in content and with reference to its enforcement in the relevant circumstances; (ii) competing rights such as the common law right of freedom of contract; and (iii) the relative bargaining positions of the contract parties. |
| 3.19. | The Conventional Penalties Act, 1962 (Act No.15 of 1962) of South Africa provides (inter alia) that:- |
| 3.19.1. | a creditor shall not be entitled to recover, in respect of an act or omission which is the subject of a penalty stipulation, both the penalty and damages or, except where the relevant contract expressly so provides, to recover damages in lieu of the penalty; and |
| 14 |
| 3.19.2. | if upon the hearing of a claim for a penalty, it appears to the court that such penalty is out of proportion to the prejudice suffered by the creditor by reason of the act or omission in respect of which the penalty was stipulated, the court may reduce the penalty to such extent as it may consider equitable in the circumstances; provided that in determining the extent of such prejudice the court shall take into consideration not only the creditor’s proprietary interest but every other rightful interest which may be affected by the act or omission in question. |
| 3.20. | The power of a South African court to order specific performance of an obligation or to grant injunctive relief is discretionary and, accordingly, we express no opinion as to whether such remedies will be available in respect of any of the obligations of Sasol under the Registration Statement. |
| 3.21. | Generally, certificates as evidence of indebtedness issued by a creditor to a debtor, or as to other facts, are under South African law, subject to enquiry and may accordingly not be valid or enforceable if expressed to be conclusive. |
| 3.22. | Provisions that a defaulting party will pay all of the innocent party’s legal costs of taking action are not enforced by the South African courts, and the general rules relating to party and party, attorney and client and attorney and own client costs are applied. |
| 3.23. | A determination, designation, calculation or certificate of any party to the Registration Statement, as to any matter provided for in the Registration Statement might, in certain circumstances, be held by the South African courts not to be final, conclusive or binding (for example, if it could be shown to have an arbitrary basis or not to have been reached in good faith) notwithstanding the provisions of the Registration Statement. |
| 3.24. | Where a party to the Registration Statement is vested with a discretion or may determine a matter in its opinion, the South African courts if called upon to consider the question may require that such discretion is exercised reasonably or that such opinion is based upon reasonable grounds. |
| 3.25. | The effectiveness of terms releasing or exculpating any party from, or limiting or excluding, a liability or duty otherwise owed, may be limited by law in South Africa. |
| 3.26. | Any claim that any counterparty may have against Sasol arising out of or in connection with the Registration Statement will, under the laws of South Africa, prescribe after the expiry of a period of three years from the date on which the cause of action in respect of such claim arose. |
| 15 |
| 3.27. | Any provision that a person shall not exercise or perform a right or obligation conferred or imposed on that person by statute, is subject to considerations of public policy. |
| 3.28. | Except as explicitly stated herein, we give no opinion as to:- |
| 3.28.1. | matters of fact; |
| 3.28.2. | any liability to any form of tax; |
| 3.28.3. | the applicability of any provision relating to competition law in South Africa; |
| 3.28.4. | the commercial desirability or reasonability of any of the terms of the Registration Statement or the transactions referred to therein; |
| 3.28.5. | the suitability or adequacy or correctness of the representations, warranties and undertakings of the Registration Statement; |
| 3.28.6. | the creditworthiness of the parties to the Registration Statement; |
| 3.28.7. | the fulfilment of any of the conditions precedent in the Registration Statement; |
| 3.28.8. | whether Sasol will be in a position to fulfil its obligations under the Registration Statement; |
| 3.28.9. | except with respect to paragraph 2.1.3, whether the acceptance, execution or performance of Sasol’s obligations under the Registration Statement will result in the breach of or infringe any other agreement, deed or arrangement entered into by or binding on Sasol; or |
| 3.28.10. | except with respect to paragraph 2.1.2, compliance by the parties with South African law in the performance of their obligations under, and implementation of, the Registration Statement. |
| 3.29. | The content of paragraph 1.3.3 is dependent on the integrity of the records and information systems of CIPC, which records and information systems are often incomplete and outdated. It is not possible to verify the accuracy of the search results referred to in paragraph 1.3.3 which we obtained from CIPC. We have assumed that the results of the search of the CIPC’s records fully and accurately reflect the information provided by Sasol to the CIPC. We have not examined any documents that Sasol may have filed with the CIPC other than where we have expressly stated otherwise in this Opinion. We have not conducted any other searches or investigations for purposes of this Opinion. |
| 16 |
| 4. | This Opinion is being furnished at the request of Sasol, on the basis that this Opinion is required under Item 601(b)(5) of Regulation S-K under the U.S. Securities Act of 1933, in connection with the filing, with the Commission, of the Registration Statement. |
| 5. | This Opinion is intended solely for use in connection with the filing, with the Commission, of Registration Statement and the issuance of securities subject to the Registration Statement, and is not to be relied upon for any other purpose. |
| 6. | We consent to (i) the filing of this Opinion with the Commission, as an exhibit to the Registration Statement, (ii) the references to this Opinion in the Registration Statement, and (iii) the references, in the Registration Statement under the section headed “Legal Matters”, to ENSafrica (the “Consent”). In giving the Consent, we do not admit or concede that we are within the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933, or the rules or regulations of the Commission promulgated thereunder. |
| 7. | ENSafrica is a private company incorporated in South Africa, with its shareholders being lawyers admitted to practice in South Africa. The lawyers of ENSafrica are, for purposes of the Consent and/or this Opinion, not admitted in any jurisdiction other than South Africa. We do not hold ourselves out as being experts in nor do we express any opinion on the law of any jurisdiction other than the laws of South Africa. |
Yours faithfully
/s/ ENSAFRICA
EDWARD NATHAN SONNENBERGS INC.
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form F-3 of Sasol Limited of our report dated 22 September 2021 relating to the consolidated financial statements and the effectiveness of internal control over financial reporting, which appears in Sasol Limited's Annual Report on Form 20-F for the year ended 30 June 2021. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers Inc.
Johannesburg, Republic of South Africa
22 September 2021
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) o
WILMINGTON SAVINGS FUND SOCIETY, FSB
(Exact name of Trustee as specified in its charter)
| N/A |
51-0054940
|
| (Jurisdiction of incorporation or organization if not a U.S. national bank) |
(I.R.S. Employer Identification No.)
|
500 Delaware Avenue, 11th Floor
Wilmington, DE 19801
(302) 792-6000
(Address of principal executive offices, including zip code)
WILMINGTON SAVINGS FUND SOCIETY
CONTROLLERS OFFICE
500 Delaware Avenue
Wilmington, DE 19801
(302) 792-6000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Sasol Financing USA LLC
(Exact name of obligor as specified in its charter)
| Republic of South Africa | Not Applicable |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
Sasol Place, 50 Katherine Street, Sandton, 2196
South Africa
(Address of principal executive offices, including zip code)
Debt securities and guarantees
(Title of the indenture securities)
Additional Obligor
Sasol Limited
(Exact name of obligor as specified in its charter)
| Republic of South Africa | Not Applicable |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
Sasol Place, 50 Katherine Street, Sandton, 2196
South Africa
(Address of principal executive offices, including zip code)
| ITEM 1. | GENERAL INFORMATION. |
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
| Securities and Exchange Commission |
| Washington, D.C. 20549 |
|
Federal Reserve District 3 |
| Philadelphia, PA |
| Federal Deposit Insurance Corporation |
| Washington, D.C. 20549 |
| Office of the Comptroller of the Currency |
| New York, NY 10173 |
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
| ITEM 2. | AFFILIATIONS WITH THE OBLIGOR. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
Based upon an examination of the books and records of the trustee and information available to the trustee, none of the obligors is an affiliate of the trustee.
| ITEM 16. | LIST OF EXHIBITS. |
Listed below are all exhibits filed as a part of this Statement of Eligibility.
Exhibit 1. A copy of the articles of association of the trustee as now in effect.
Exhibit 2. Not applicable; authority of the trustee to commence business is contained in Exhibit 1.
Exhibit 3. Not applicable; authorization of the trustee to exercise corporate trust powers is contained in Exhibit 1.
Exhibit 4. A copy of the existing bylaws of the trustee.
Exhibit 5. Not applicable.
Exhibit 6. The consent of the trustee required by Section 321(b) of the Act.
Exhibit 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Savings Fund Society, FSB, a federal savings bank organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 20th day of September, 2021.
| WILMINGTON SAVINGS FUND SOCIETY, FSB | ||
| By: | /s/ Geoffrey J. Lewis | |
| Name: Geoffrey J. Lewis | ||
| Title: Vice President | ||
EXHIBIT 1
CHARTER OF WILMINGTON SAVINGS FUND SOCIETY, FSB
(see attached]
Office of the Comptroller of the Currency Washington, DC 20219 CERTIFIED FEDERAL SAVINGS ASSOCIATION CHARTER I, Thomas J. Curry, Comptroller of the Currency, do hereby certify that the document hereto attached is a true and correct copy, as recorded in the Office of the Comptroller of the Currency (successor to the Office of Thrift Supervision), of the charter for the federal savings association listed below: Wilmington Savings Fund Society, FSB Wilmington, Delaware OTS Docket No. 7938 IN TESTIMONY WHEREOF, today, July 29, 2015, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia. Comptroller of the Currency
OTS DOCKET # 7938 FEDERAL STOCK CHARTER WILMINGTON SAVINGS FUND SOCIETY SECTION 1. Corporate Title. The full corporate title of the savings bank is "Wilmington Savings Fund Society, Federal Savings Bank." SECTION 2. Office. The home office of the savings bank shall be located in the County of New Castle, State of Delaware. SECTION 3. Duration. The duration of the savings bank is perpetual. SECTION 4. Purpose and Powers. The purpose of the savings bank is to pursue any or all of the lawful objectives of a Federal savings bank chartered under Section 5 of the Home Owners' Loan Act and to exercise all the express, implied, and incidental powers conferred thereby and by all acts amendatory thereof and supplemental thereto, subject to the Constitution and laws of the United States as they are now in effect, or as they may hereafter be amended, and subject to all lawful and applicable rules, regulations, and orders of the Federal Home Loan Bank Board ("Board"). In addition, the savings bank may make any investment and engage in any activity as may be specifically authorized by action of the Board, including authorization by delegated authority, in connection with action approving the issuance of the charter. SECTION 5. Capital Stock. The total number of shares of all classes of the capital stock which the savings bank has authority to issue is Twenty Five Million (25,000,000), of which Seventeen and One Half Million (17,500,000) shall be common stock, par value $.01 per share, and of which Seven and One Half Million (7,500,000) shall be preferred stock, par value $.01 per share. The shares may be issued from time to time as authorized by the board of directors without further approval of stockholders except as otherwise provided in this Section 5 or to the extent that such approval is required by governing law, rule, or regulation. The consideration for the issuance of the shares shall be paid in full before their issuance and shall not be less than the par value. Neither promissory notes nor future services shall constitute payment or part payment for the issuance of shares of the savings bank. The consideration for the shares shall be cash, tangible or intangible property (to the extent direct investment in such property would be permitted), labor or services actually performed for the savings bank, or any combination of the foregoing. In the absence of actual fraud in the transaction, the value of such property, labor, or services, as determined by the board of directors of the savings bank, shall be conclusive. Upon payment of such consideration, such shares shall be deemed to be fully paid and nonassessable. In the case of a stock dividend, that part of the surplus of the savings bank which is transferred to stated capital upon the issuance of shares as a share dividend shall be deemed to be the consideration for their issuance. Except for shares issuable in connection with the conversion of the savings bank from the mutual to the stock form of capitalization, no shares of capital stock (including shares issuable upon conversion, exchange, or exercise of other securities) shall be issued, directly or indirectly, to officers, directors, or controlling persons of the savings bank other than as part of a general public offering or as qualifying shares to director, unless their issuance or the plan under which they would be issued has been approved by a majority of the total votes eligible to be cast at a legal meeting. Nothing contained in this Section 5 (or in any supplementary sections hereto) shall entitle the holders of any class of a series of capital stock to vote as a separate class or series or to more than one vote per share, except as to the cumulation of votes for the election of directors: Provided, That this restriction on voting separately by class or series shall not apply: (i) To any provision which would authorize the holders of preferred stock, voting as a class or series, to elect some members of the board of directors, less than a majority thereof, in the event of default in the payment of dividends on any class or series of preferred stock;
(ii) To any provision which would require the holders of preferred stock, voting as a class or series, to approve the merger or consolidation of the savings bank with another corporation or the sale, lease, or conveyance (other than by mortgage or pledge) of properties or business in exchange for securities of a corporation other than the savings bank if the preferred stock is exchanged for securities of such other corporation: Provided, That no provision may require such approval for transactions undertaken with the assistance or pursuant to the direction of the Federal Savings and Loan Insurance Corporation; (iii) To any amendment which would adversely change the specific terms of any class of series of capital stock as set forth in this Section 5 (or in any supplementary sections hereto), including any amendment which would create or enlarge any class or series ranking prior thereto in rights and preferences. An amendment which increases the number of authorized shares of any class or series of capital stock, or substitutes the surviving association in a merger or consolidation for the savings bank, shall not be considered to be such as adverse change. A description of the different classes and series (if any) of the savings bank's capital stock and a statement of the designations, and the relative rights, preferences, and limitations of the shares of each class of and series (if any) of capital stock are as follows: A. Common Stock. Except as provided in this Section 5 (or in any supplementary sections hereto) the holders of the common stock shall exclusively possess all voting power. Each holder of shares of common stock shall be entitled to one vote for each share held by such holder, except as to the cumulation of votes for the election of directors. Whenever there shall have paid, or declared and set aside for payment, to the holders of the outstanding shares of any class of stock having preference over the common stock as to the payment of dividends, the full amount of dividends and of sinking fund, retirement fund, or other retirement payments, if any, to which such holders are respectively entitled in preference to the common stock, then dividends may be paid on the common stock and on any class or series of stock entitled to participate therewith as to dividends out of any assets legally available for the payment of dividends. In the event of any liquidation, dissolution, or winding up of the savings bank, the holders of the common stock (and the holders of any class or series of stock entitled to participate with the common stock in the distribution of assets) shall be entitled to receive, in cash or in kind, the assets of the savings bank available for distribution remaining after. (i) payment or provision for payments of the savings bank's debts and liabilities; (ii) distributions or provision for distributions in settlement of its liquidation account; and (iii) distributions or provision for distributions to holders of any class or series of stock having preference over the common stock in the liquidation, dissolution, or winding up of the savings bank. Each share of common stock shall have the same relative rights as and be identical in all respects with all the other shares of common stock. B. Preferred Stock. The savings bank may provide in supplementary sections to its charter for one or more classes of preferred stock, which shall be separately identified. The shares of any class may be divided into and issued in series, with each series separately designated so as to distinguish the shares thereof from the shares of all other series and classes. The terms of each series shall be set forth in a supplementary section to the charter. All shares of the same class shall be identical except as to the following relative rights and preferences, as to which there may be variations between different series: (a) The distinctive serial designation and the number of shares constituting such series; (b) The dividend rate or the amount of dividends to be paid on the shares of such series, whether dividends shall be cumulative and, if so, from which date(s) the payment date(s) for dividends, and the participating or other special rights, if any, with respect to dividends; (c) The voting powers, full or limited, if any, of the shares of such series; (d) Whether the shares of such series shall be redeemable and, if so, the price(s) at which, and the terms and conditions on which, such shares may be redeemed; 2
(e) The amount(s) payable upon the shares of such series in the event of voluntary or involuntary liquidation, dissolution, or winding up to the savings bank; (f) Whether the shares of such series shall be entitled to the benefit of a sinking or retirement fund to be applied to the purchase or redemption of such shares, and if so entitled, the amount of such fund and the manner of its application, including the price(s) at which such shares may be redeemed or purchased through the application of such fund; (g) Whether the shares of such series shall be convertible into, or exchangeable for, shares of any other class or classes of stock of the savings bank and, if so, the conversion price(s) or the rate(s) of exchange, and the adjustments thereof, if any, at which such conversion or exchange may be made, and any other terms and conditions of such conversion or exchange. (h) The price or other consideration for which the shares of such series shall be issued; and (i) Whether the shares of such series which are redeemed or converted shall have the status of authorized but unissued shares of serial preferred stock and whether such shares may be reissued as shares of the same or any other series of serial preferred stock. Each share of each series of serial preferred stock shall have the same relative rights as and be identical in all respects with all the other shares of the same series. The board of directors shall have authority to divide, by the adoption of the supplementary charter sections, any authorized class of preferred stock into series, and, within the limitations set forth in this section and the articles of incorporation, fix and determine the relative rights and preferences of the shares of any series so established. Prior to the issuance of any preferred shares of a series established by a supplementary charter section adopted by the board of directors, the savings bank shall file with the Secretary to the Board a dated copy of that supplementary section of this charter establishing and designating the series and fixing and determining the relative rights and preferences thereof. SECTION 6. Net Worth Certificates. Notwithstanding any provision of Section 5, Capital Stock, the savings bank may issue net worth certificates income capital certificates or similar certificates to the Federal Savings and Loan Insurance Corporation (the "Corporation") or the Federal Deposit Insurance Corporation in exchange for appropriate consideration, including promissory notes of the Corporation, in accordance with the rules, regulations, and policies of the Board. Subject to such rules, regulations, and policies, the board of directors of the savings bank is authorized without the prior approval of the stockholders of the savings bank and by resolution(s) from time to time adopted by the board of directors to cause the issuance of net worth certificates to the Corporation and to fix the designations, preferences, and relative, participating, optional, or other special rights of the certificates, and the qualifications, limitations, and the restrictions thereon. Stockholders of the savings bank shall not be entitled to pre-emptive rights with respect to the issuance of net worth certificate, nor shall holders of such certificates be entitled to pre-emptive rights with respect to any additional issuance of net worth certificates. SECTION 7. Pre-emptive Rights. Holders of the capital stock of the savings bank shall not be entitled to pre-emptive rights with respect to any shares of the savings bank which may be issued. SECTION 8. Certain provisions applicable for five years. Notwithstanding anything contained in the savings bank charter or bylaws to the contrary, for a period of five years from the date of completion of the conversion of the savings bank from mutual to stock form, the following provisions shall apply: A. Beneficial ownership limitations. No person shall directly or indirectly offer to acquire or acquire the beneficial ownership of more than 10 percent of any class of an equity security of the savings bank. This limitation shall not apply to a transaction in which the savings bank forms a holding company without change in the respective beneficial ownership interests of its stockholders other than pursuant to the exercise of any dissenter and appraisal rights or the purchase of shares by underwriters in connection with a public offering. In the event shares are acquired in violations of this Section 8, all shares beneficially owned by any person in excess of 10% shall be considered "excess shares" and shall not be counted as shares entitled to vote and shall not be voted by any person or counted as voting shares in connection with any matters submitted to the stockholders for a vote. 3
For the purposes of this Section 8, the following definitions apply. (1) The term "person" includes an individual, a group acting in concert, a corporation, a partnership, an association, a joint stock company, a trust, any unincorporated organization or similar company, a syndicate or any other group formed for the purpose of acquiring, holding or disposing or securities of the savings bank. (2) The term "offer" includes every offer to buy or otherwise acquire, solicitation of an offer to sell, lender offer for, or request or invitation for lenders of, a security or interest in a security for value. (3) The term "acquire" includes every type of acquisition, whether effected by purchase, exchange, operation of law or otherwise. (4) The term "acting in concert" means (a) knowing participation in a joint activity or conscious parallel action towards a common goal whether or not pursuant to an express agreement, or (b) a combination or pooling of voting or other interests in the securities of an issuer for a common purpose pursuant to any contract, understanding, relationship, agreement or other arrangements whether written or otherwise. B. Cumulative voting limitation. Stockholders shall not be permitted to cumulate their votes for election of directors. C. Call for special meetings. Special meetings of stockholders relating to changes in control of the savings bank or amendments to its charter shall be called only upon directors of the board or directors. SECTION 9. Liquidation Account. Pursuant to the requirements of the Board's regulations (12 C.F.R. Subchapter D), the savings bank shall establish and maintain a liquidation account for the benefit of its savings account holders as of December 31, 1983 ("eligible savers"). In the event of a complete liquidation of the savings bank, it shall comply with such regulations with respect to the amount and the priorities on liquidation of each of the savings bank's eligible saver's inchoate interest in the liquidation account, to the extent it is still in existence: Provided, that an eligible saver's inchoate interest in the liquidation account shall not entitle such eligible saver to any voting rights at meetings of the savings bank's stockholders. SECTION 10. Directors. The savings bank shall be under the direction of a board of directors. The authorized number of directors, as stated in the savings bank's bylaws, shall not be less than seven or more than fifteen except when a greater number is approved by the Board. SECTION 11. Amendment of Charter. Except as provided in Section 5, no amendment, addition, alteration, change, or repeal of this charter shall be made, unless such is first proposed by the board of directors of the savings bank, the preliminarily approved by the Board, which preliminary approval may be granted by the Board pursuant to regulations specifying preapproved charter amendments, and thereafter approved by the shareholders by a majority of the total votes eligible to be cast at a legal meeting. Any amendment, addition, alteration, change, or repeal so acted upon shall be effective upon filing with the Board in accordance with regulatory procedures or on such other date as the Board may specify in its preliminary approval. 4
Any amendment, addition, alteration, change or repeal so acted upon shall be effective upon filing with the Board in accordance with the regulatory procedures or on such other date as the Board may specify in its preliminary approval. Attest: Secretary of the Savings Bank By: President or Chief Executive Officer of the Savings Bank Declared effective this day of, 198. Attest: Secretary of the Savings Bank FEDERAL HOME LOAN BANK BOARD By: Associate General Counsel for Conversions 5
SUPPLEMENTARY SECTION TO THE FEDERAL STOCK CHARTER OF WILMINGTON SAVINGS FUND SOCIETY, FEDERAL SAVINGS BANK Authorization of Non-Cumulative Convertible Perpetual Preferred Stock, Series 1, $.01 Per Value Per Share RESOLVED that, pursuant to Section 5 of the Federal Stock Charter of Wilmington Savings Fund Society, Federal Savings Bank (the "Bank"), the Board of Directors of the Bank does hereby adopt a Supplementary Section to the Federal Stock Charter of the Bank to provide for the issuance of the shares of Preferred Stock in a series to consist of Two Million (2,000,000) shares, $.01 par value per share, to be known as the Bank's "Non-Cumulative Convertible Perpetual Preferred Stock, Series 1" and does hereby fix the distinguishing characteristics, relative rights and preferences, including the designations, preferences and relative participating, optional or other special rights, and the qualifications, limitations and restrictions thereof, of such series of stock (in addition to those set forth in the Federal Stock Charter of the Bank which are applicable to the Preferred Stock of all series), as follows: Section 1. Designation and Amount. The shares of this series shall be designated as "Non-Cumulative Perpetual Convertible Preferred Stock, Series 1" (the "Series 1 Preferred Stock") and the number of shares constituting the Series 1 Preferred Stock shall be Two Million (2,000,000) shares. Section 2. Dividends and Distributions. (A) The holders of record of shares of Series 1 Preferred Stock shall be entitled to receive, if, as and when declared by the Board of Directors out of funds legally available for the purpose, quarterly cash dividends payable in arrears on the first day of January, April, July and October in each year (each such date being referred to herein as a "Quarterly Dividend Payment Date"), to the holders of record of the Series 1 Preferred Stock at the close of business on or about the 15th day of the month next proceeding the first day of January, April, July or October, as the case may be, fixed by the Board of Directors (the "Record Date"), commencing on the first Quarterly Dividend Payment Date after March 31, 1994 in an amount (if any) per share (rounded to the nearest cent), subject to the provision for adjustment hereinafter set forth, equal to one-quarter of the total annual dividend of ninety costs (90(cent)) per share. (B) Dividends due pursuant to paragraph (A) of this Section shall begin to accrue on outstanding shares of Series 1 Preferred Stock from the Quarterly Dividend Payment Date next preceding March 31, 1994. Dividends accruing on outstanding shares of Series 1 Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. (C) No dividends shall accrue or be paid on the Series 1 Preferred Stock, if after payment, the Bank would be undercapitalized within the meaning of Section 38(d) of the Federal Deposit Insurance Act. Section 3. Certain Restrictions. (A) Prior to March 31, 1994, the Bank shall not in any circumstances, and after March 31, 1994, whenever quarterly dividends or other dividends or distributions payable on the Series 1 Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series 1 Preferred Stock outstanding shall have been paid in full, the Bank shall not: (i) declare or pay dividends, or make any other distributions, on any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series 1 Preferred Stock; (ii) declare or pay dividends, or make any other distributions, on any shares of stock ranking on a parity (either as to dividends or upon liquidations, dissolution or winding up) with the Series 1 Preferred Stock, except dividends paid rateably on the Series 1 Preferred Stock and all such parity stock
on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; or (iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series 1 Preferred Stock, provided that the Bank may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares of any stock of the Bank ranking junior (as to dividends and upon dissolution, liquation or winding up) to the Series 1 Preferred Stock. (B) The Bank shall not permit any subsidiary of the Bank to purchase or otherwise acquire for consideration any shares of stock of the Bank unless the Bank could, under paragraph (A) of this Section 3, purchase or otherwise acquire such shares at such time and in such manner. Section 4. Voting Rights. Except as otherwise provided by statute, the Bank's Federal Stock Charter or the regulations of the Office of Thrift Supervision, or any successor thereto, holders of Series 1 Preferred Stock shall have no special voting rights and their consent shall not be required for taking any corporate action. Section 5. Conversion. (A) Conversion Privilege. Each holder of a share of Series 1 Preferred Stock shall have the right, at this option, at any time or from time to time to convert such share into six (6) fully paid and nonassessable shares of the Bank's common stock, $.01 par value per share (the "Common Stock"). No adjustment or allowance shall be made for dividends on shares of Series 1 Preferred Stock surrendered for conversion, whether accrued, accumulated or otherwise. If the Bank subdivides or combine in a larger or smaller number of shares its outstanding shares of Common Stock, then the number of shares of Common Stock issuable upon the conversion of Series 1 Preferred Stock will be proportionately increased in the case of a subdivision and decreased in the case of a combination, effective in either case at the close of business on the date that the subdivision or combination becomes effective. If the Bank at any time pays to the holders of its Common Stock a dividend in Common Stock, the number of shares of Common Stock issuable upon the conversion of Series 1 Preferred Stock shall be proportionally increased, effective at the close of business on the record date for determination of the holders of the Common Stock entitled to the dividend. In addition, the number of shares into which the Series 1 Preferred Stock shall convert shall be automatically adjusted from time to time in the same manner and to the same extent as the number of shares into which the 10% Convertible Preferred Stock, Series 1, $.01 par value per share, of Star States Corporation (the "Star States Series 1 Preferred Stock") shall be entitled to convert so that each share of the Series 1 Preferred Stock shall at all times be convertible into the same number of shares of Common Stock as a share of Star States Series 1 Preferred Stock would be entitled to convert. (B) Manner of Exercise. In order to exercise the conversion privilege with respect to any shares of Series 1 Preferred Stock, the holder thereof shall surrender the certificate or certificates therefor to any transfer agent of the Bank of the Series 1 Preferred Stock, duly endorsed in blank for transfer, accompanied by written notice of election to convert such shares of Series 1 Preferred Stock or a portion thereof executed on the form set forth on such certificates or on such other form as may be provided from time to time by the Bank. As soon as practicable after the surrender of such certificates as provided above, the Bank shall cause to be issued and delivered, at the office of such transfer agent, to or on the order of the holder of the certificates thus surrendered, a certificate or certificates for the number of full shares of Common Stock issuable hereunder upon the conversion of such shares of Series 1 Preferred Stock and scrip, in respect of any fraction of a share of Common Stock issuable upon such conversion as provided in paragraph (C). Such conversion shall be deemed to have been effected on the date on which the certification for such shares of Series 1 Preferred Stock have been surrendered as provided above, and the person in whose name any certificate or certificates for shares of Common Stock are issuable upon such conversion shall be deemed to have become on such date the holder of record of the shares represented thereby. (C) Issuance of Scrip in Lieu of Fractional Shares. No fractional shares of Common Stock shall be issued upon any conversion of Series 1 Preferred Stock. If two or more shares of Series 1 Preferred Stock are surrendered for conversion at one time by the same holder, the number of full shares issuable upon the conversion of such shares shall be computed on the basis of the aggregate Original Liquidation Value (without adjustment for allowance for dividends whether accrued, accumulated or otherwise) of such shares. In lieu of any fraction of a share of Common Stock to which any holder would otherwise be entitled upon conversion of any shares of Series 1 Preferred Stock, the Bank shall issue non-interest-bearing and non-voting scrip certificates which shall not be entitled to dividends for such fraction, such certificates, together with other similar certificates, to be exchangeable for the number of full shares of Common Stock represented thereby, to be issued in such
denominations and in such form, to expire after such reasonable time (which shall be not less than one year after the date of issue thereof), to contain such provisions for the sale, for the account of the holders of such certificates, of shares of Common Stock for which such certificates are exchangeable, and to be subject to such other terms and conditions, as the Board of Directors may from time to time determine prior to the issue thereof. (D) The Bank shall at all times reserve and keep available out of the authorized Common Stock the full number of shares of the Common Stock issuable upon the conversion of all outstanding shares of the Series 1 Preferred Stock. Section 6. Redemption of the Series 1 Preferred Stock. (A) Redemption at the Bank's Option. At any time on or after January 1, 1996, the Bank may redeem all or any portion of the Series 1 Preferred Stock then outstanding at a price per share equal to the Redemption Price (as defined herein). For each share which is called for redemption, the Bank will be obligated to pay to the holder thereof on the date on which redemption is to be made ( the "Redemption Date"), upon surrender by such holder at the offices of the transfer agent for the Series 1 Preferred Stock of the certificate representing such share, duly endorsed in blank or accompanied by an appropriate form of assignment, an amount in cash equal to nine dollars ($9) per share (the "Redemption Price"). (B) Partial Redemption. In the event that less than all of the outstanding shares of the Series 1 Preferred Stock are to be redeemed, the number of shares to be redeemed shall be determined by the Board of Directors of the Bank and the shares to be redeemed shall be determined by lot or pro rata or by any other method as may be determined by such Board of Directors in its sole discretion to be equitable, and the certificate of the Bank's Secretary filed with the transfer agent for the Series 1 Preferred Stock in respect of such determination shall be conclusive. (C) Notice of Redemption. In the event the Bank shall redeem shares of Series 1 Preferred Stock, notice of such redemption shall be given by the first class mail, postage prepaid, mailed not less than fifteen (15) nor more than sixty (60) days prior to the Redemption Date, to each record holder of the shares to be redeemed, at such holder's address as the same appears on the books of the Bank. Each such notice shall state: (i) the time and date as of which the redemption shall occur; (ii) the total number of shares of Series 1 Preferred Stock to be redeemed and, if fewer than all the shares held by such holder are to be redeemed, the number of such shares to be redeemed from such holder; (iii) the Redemption Price; (iv) that the shares of Series 1 Preferred Stock called for redemption may be converted at any time prior to the time and date fixed for redemption; (v) the applicable conversion price or rate; (iv) the place where certificates for such shares to be surrendered for payment of the Redemption Price; and (vii) that dividends on the shares to be redeemed will cease to accrue on such Redemption Date. (D) Dividends After Redemption Date. If notice of redemption shall have been given as provided in paragraph (C), dividends on the shares of Series 1 Preferred Stock so called for redemption shall cease to accrue, such shares shall no longer be deemed to be outstanding, and all rights of the holders thereof as stockholders of the Bank (except, the right to receive from the Bank the Redemption Price without interest and except the right to convert such shares in accordance with Section 5) shall cease (including any right to receive dividends otherwise payable on any Dividend Payment Date that would have occurred after the Redemption Date) from and after the time and date fixed in the notice of Redemption Date or (ii) if the Bank shall so elect and state in the notice of redemption, from and after the time and date (which date shall be the Redemption Date or an earlier date not less than fifteen (15) days after the date of mailing of the redemption notice) on which the Bank shall irrevocably deposit with a designated bank or trust company, as paying agent. Money sufficient to pay at the office of such paying agent on the Redemption Date, the Redemption Price. Any money so deposited with any such paying agent which shall not be required for such redemption because of the exercise of any right of conversion or otherwise shall be returned to the Bank forthwith. Upon surrender (in accordance with the notice of redemption) of the certificate or certificates for any shares to be redeemed (properly endorsed or assigned for transfer, if the Bank shall so require and the notice of redemption shall so state), such shares shall be redeemed by the Bank at the Redemption Price. In case fewer than all the shares represented by any such certificate are to be redeemed, a new certificate shall be issued representing the unredeemed shares, without cost to the holder thereof, together with scrip in lieu of fractional shares in accordance with Section 5(C). Subject to applicable escheat laws, any moneys so set aside by the Bank and unclaimed at the end of one year from the Redemption Date shall revert to the general funds of the Bank, after which reversion the holders of such shares so called for redemption shall look only to the general funds of the Bank for the payment of the Redemption Price without interest. Any interest accrued on funds so deposited shall be paid to the Bank from time to time.
(E) No Other Redemption. The Series 1 Preferred Stock shall not be subject to redemption except as provided in this Section 6. Section 7 Reacquired Shares. Any shares of Series 1 Preferred Stock purchased or otherwise acquired by the Bank in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the Federal Stock Charter of the Bank, including any supplementary section to the Federal Stock Charter creating a series of Preferred Stock or any similar stock or as otherwise required by law. Section 8. Liquidation, Dissolution or Winding Up. Upon any liquidation, dissolution or winding up of the Bank the holders of shares of Series 1 Preferred Stock shall be entitled to receive, after payment or provision for payment of the Bank's debt and liabilities and distributions or provisions for distributions in settlement of its liquidation account, an aggregate amount per share, subject to the provisions for adjustment hereinafter set forth, equal to nine dollars ($9) (the "Original Liquidation Value") per share and the holder of the Series 1 Preferred Stock shall not be entitled to any further payment, such amounts being herein sometimes referred to as the "Liquidation Payments." Upon any such liquidations, dissolution or winding up of the Bank, after the holders of the Series 1 Preferred Stock shall have been paid in full the amounts to which they shall be entitled, the remaining net assets of the Bank may be distributed to the holders of the Common Stock. Written notice of any such liquidations, dissolution or winding up, stating a payment date, the amount of the Liquidation Payments and the place where said sums shall be payable shall be given by mail, postings prepaid, not less than thirty (30) days prior to the payment date stated therein, to the holders of record of the Series 1 Preferred Stock, such notice to be addressed to each stockholder at his post office address shown by the records of the Bank. Neither the consolidation nor merger of the Bank into or with any other corporation or corporations, nor the sale of transfer by the Bank of all or any part of its assets, nor the reduction of the capital stock of the Bank, shall be deemed to be a liquidation, dissolution or winding up of the Bank within the meaning of any of the provisions of this Section 8. Section 9. Consolidation, Merger, etc. In the event the Bank shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such event each share of Series 1 Preferred Stock shall be the same time be similarly exchanged or changed into an amount per share, subject to the provision for adjustment hereinafter set forth, equal to the amount which would have been received by the holder thereof if such share of Series 1 Preferred Stock had been converted to Common Stock immediately prior to such transaction pursuant to Section 5 hereof. The undersigned President and Secretary of the Bank hereby certify that the foregoing Supplementary Section to the Federal Stock Charter of the Bank was duly adopted by the Board of Directors of the Bank. Dated as of the 9th day of September, 1992. WILMINGTON SAVINGS FUND SOCIETY, FEDERAL SAVINGS BANK SEAL By: Marvin N. Schoenhals, President ATTEST: By: John D. Waters, Secretary
EXHIBIT 4
BYLAWS OF WILMINGTON SAVINGS FUND SOCIETY, FSB
(see attached]
BYLAWS OF WILMINGTON SAVINGS FUND SOCIETY, FEDERAL SAVINGS BANK ARTICLE I. HOME OFFICE The home office of Wilmington Savings Fund Society, Federal Savings Bank ("Bank") shall be at Wilmington in the county of the New Castle in the State of Delaware. ARTICLE II. STOCKHOLDERS SECTION 1. Place of Meetings. All annual and special meetings of stockholders shall be held at such place as the board of directors may determine in the state in which the Bank has its principal place of business. SECTION 2. Annual Meeting. The annual meeting of the stockholders of the Bank for the election of directors and for the transaction of any other business of the Bank shall be held within 120 days after the end of the Bank's fiscal year. Such meeting date shall be designated annually by the board of directors. SECTION 3. Special Meetings. Special Meetings of the stockholders for any purpose or purposes, unless otherwise prescribed by the regulations of the Federal Home Loan Bank Board ("Board") (which as hereinafter used includes the Federal Savings and Loan Insurance Corporation), may be called at any time by the chairman of the board, the president, or a majority of the board of directors, and shall be called by the chairman of the board, the president, or the secretary upon the written request of the holders of not less than one-tenth of all of the outstanding capital stock of the Bank entitled to vote at the meeting. Such written request shall state the purposes or purposes of the meeting and shall be delivered to the home officer of the Bank addressed to the chairman of the board, the president, or the secretary. SECTION 4. Conduct of Meetings. Annual and special meetings shall be conducted in accordance with the most current edition of Robert's Rules of Order unless otherwise prescribed by regulations of the Federal Home Loan Bank Board, or these bylaws. The board of directors shall designate, when present, either the chairman of the board or president to preside at such meetings. SECTION 5. Notice of Meetings. Written notice stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called shall be delivered not less than twenty nor more than fifty days before the date of the meeting, either personally or by mail, by or at the direction of the chairman of the board, the president, the secretary, the directors calling the meeting to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the U.S. mail, addressed to the stockholder at his address as it appears on the stock transfer books or records of the Bank as of the record date prescribed in Section 6 of this Article II, with postage thereon prepaid. When any stockholders' meeting, either annual or special, is adjourned for thirty days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. It shall not be necessary to give any notice of the time and place of any meeting adjourned for less than thirty days or of the business to be transacted thereat, other than an announcement at the meeting at which such adjournment is taken. SECTION 6. Fixing of Record Date. For the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or stockholders entitled to receive payment of any dividend, or in order to make a determination of stockholders for any other proper purpose, the board of directors shall fix in advance a date as the record date for any such determination of stockholders. Such date in any case shall not be more than sixty days and, in case of a meeting of
stockholders, not fewer than ten day prior to the date on which the particular action, requiring such determination of stockholders, is to be taken. When a determination of stockholders entitled to vote at any meeting of stockholders has been made as provided in this section, such determination shall apply to any adjournment thereof. SECTION 7. Voting Lists. The officer or agent having charge of the stock transfer books for shares of the Bank shall make, at least twenty days before each meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting, or any adjournment hereof, arranged in alphabetical order, with the address of and the number of shares held by each, which list, shall be kept on file at the home office of the Bank and shall be subject to inspection by any stockholder at any time during usual business hours, for a period of twenty days prior to such meeting. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any stockholder during the whole time of the meeting. The original stock transfer book shall be prima facie evidence as to who are the stockholders entitled to examine such list or transfer books or to vote at any meeting of stockholders. In lieu of making the stockholders list available for inspection by any stockholder as provided in the preceding paragraph; the board of directors may elect to follow the procedures prescribed in Section 552.6(d) of the Board's Regulations, as now or hereafter in effect. SECTION 8. Quorum. A majority of the outstanding shares of the Bank entitled to vote, represented in person or by proxy, shall continue a quorum at a meeting of stockholders. If less than a majority of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. The stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. SECTION 9. Proxies. At all meetings stockholders, a stockholder may vote by proxy executed in writing by the stockholder or by his duly authorized attorney in fact. Proxies solicited on behalf of the management shall be voted as directed by the stockholder or, in the absence of such direction, as determined by a majority of the board of directors. No proxy shall be valid after eleven months from the date of its execution except for a proxy coupled with an interest. SECTION 10. Voting of Shares in the Name of Two or More Persons. When ownership stands in the name of two or more persons, in the absence of written directions to the Bank to the contrary, at any meeting of the stockholders of the Bank any one or more of such stockholders may cast, in person or by proxy, all votes to which such ownership is entitled. In the event an attempt is made to cast conflicting votes, in person or by proxy, by the several persons in whose names shares of stock stand, the vote or votes to which those persons are entitled shall be cast as directed by a majority of those holding such stock and present in person or by proxy at such meeting, but no votes shall be cast as directed by a majority of those holding such stock if a majority cannot agree. SECTION 11. Voting of Shares by Certain Holders. Shares standing in the name of another corporation may be voted by any officer, agent or proxy as the bylaws of such corporation may prescribe, or, in the absence of such provision, as the board of directors of such corporation may determine. Share held by an administrator, executor, guardian or conservator may be voted by him, either in person or by proxy, without a transfer of such shares into his name. Shares standing in the name of a trustee may be voted by him, either in person or by proxy, but no trustee shall be entitled to vote shares held by him without a transfer of such shares into his name. Shares standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without the transfer thereof into his name if authority to do so is contained in an appropriate order of the court or other public authority by which such receiver was appointed. A stockholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee and thereafter the pledgee shall be entitled to vote the share so transferred. 2
Neither treasury shares of its own stock held by the Bank, nor shares held by another corporation, if a majority of the shares entitled to vote for the election of directors of such other corporation are held by the Bank, shall be voted at any meeting or counted in determining the total number of outstanding shares at any given time for purposes of any meeting. SECTION 12. Cumulative Voting. For a period of five years following the date of the completion of the conversion of the Bank from mutual to stock form, the cumulation of votes for the election of directors is not permitted. Thereafter, at each election for directors every stockholder entitled to vote at such election shall have the right either to vote, in person or by proxy, the number of shares owned by him for a many persons as there are directors to be elected and for whose election he has a right to vote, or to cumulate his votes by giving one candidate as many votes as the number of such directors to be elected multiplied by the number of his shares shall equal, or by distributing such votes on the same principle among any number of candidates. SECTION 13. Informal Action by Stockholders. Any action required to be taken at a meeting of stockholders, or any other action which may be taken at a meeting of the stockholders, any be taken without a meeting if unanimous consent in writing, setting forth the action so taken, shall be given by all of the stockholders entitled to vote with respect to the subject matter thereof. SECTION 14. Inspectors of Election. In advance of any meeting of stockholders, the board of directors may appoint any persons other than nominees for office as inspectors of election to act at such meeting or any adjournment thereof. The number of inspectors shall be either one or three. If the board of directors so appoints either one or three such inspectors that appointment shall not be altered at the meeting. If inspectors of election are not so appointed, the chairman of the board or the president may make such appointment at the meeting. If appointed at the meeting, the majority of the votes present shall determine whether one or three inspectors are to be appointed. In case any person appointed as inspector fails to appear or refuses to act, the vacancy may be filled by appointment by the board of directors in advance of the meeting, by the chairman of the board, or by the president. Unless otherwise prescribed by regulations of the Federal Home Loan Bank Board, the duties of such inspectors shall include: determining the number of shares of stock and the voting power of each share, the shares of stock represented at the meeting, the existence of a quorum, the authenticity, validity and effect of proxies; receiving votes, ballots or consents; hearing and determining all challenges and questions in any way arising in connection with the right to vote; counting and tabulating all votes or consents; determining the result; and such acts as may be proper to conduct the election or vote with fairness to all stockholders. SECTION 15. Nominating Committee. The board of directors shall act as a nominating committee for selecting the management nominees for election as directors. Except in the case of a nominee substituted as a result of the death or other incapacity of a management nominee, the nominating committee shall deliver, such nominations shall be posted in a conspicuous place in each office of the Bank. No annual meeting unless other nominations by stockholders are made in writing and delivered to the secretary of the Bank at least five days prior to the date of the annual meeting. Upon delivery, such nominations shall be posted in a conspicuous place in each office of the bank. Ballots bearing the names of all the persons nominated by the nominating committee and by stockholders shall be provided for use at the annual meeting. However, if the nominating committee shall fail or refuse to act at least 20 days prior to the annual meeting, nominations for directors may be made at the annual meeting by any stockholder entitled to vote and shall be voted upon. SECTION 16. New Business. Any new business proposed by a stockholder to be taken up at the annual meeting shall be stated in writing and filed with the secretary of the Bank at least five days before the date of the annual meeting, and all business so stated, proposed and filed shall be considered at the annual meeting, but no other proposal shall be acted upon at the annual meeting. Such writing filed with the secretary shall contain such information as required by Regulation 14A and Schedule 14A under the Securities Exchange Act 1934. Any stockholder may make any other proposal at the annual meeting and the same may be discussed and considered, but unless state in writing and filed with the secretary at least five days before the meeting, as provided above, such proposal shall be laid over for action at an 3
adjourned, special or annual meeting of the stockholders taking place thirty days or more thereafter. This provision shall not prevent the consideration and approval or disapproval at the annual meeting of reports of officers, directors and committees, but in connection with such reports no new business shall be acted upon at such annual meeting unless stated and filed as herein provided. ARTICLE III. BOARD OF DIRECTORS SECTION 1. General Powers. The business and affairs of the Bank shall be under the direction of its board of directors. The board of directors shall annually elect a chairman of the board and a president from among its members and shall designate, when present, either the chairman of the board or the president to preside at the meetings. SECTION 2. Number and Term. The board of directors shall consist of eleven (11) members and shall be divided into three classes as nearly equal in number as possible. The members of each class shall be elected for a term of three years and until their successors are elected and qualified. One class shall be elected by ballot annually. SECTION 3. Regular Meetings. A regular meeting of the board of directors shall be held without other notice than this bylaw immediately after, and at the same place as, the annual meeting of stockholders. The board of directors may provide, by resolution, the time and place, within the Bank's regular lending area, for the holding of additional regular meetings without prior notice than such resolution. SECTION 4. Qualification. Each Director shall at all times be the beneficial owner of not less than 100 shares of capital stock of the association unless the association is a wholly owned subsidiary of holding company. SECTION 5. Special Meetings. Special meetings of the board of directors may be called by or at the request of the chairman of the board, the president or one-third of the directors. The persons authorized to call special meetings of the board of directors may fix any place, within the Bank's regular lending area, as the place for holding any special meeting of the board of directors called by such persons. All meetings of the board of directors shall be conducted in accordance with the most current edition of Robert's Rules of Order. Members of the board of directors may participate in the meetings by means of conference telephone, or by means of similar communications equipment by which all persons participating in the meeting can hear each other. Such participation shall constitute presence in person but shall not constitute attendance for the purpose of compensation pursuant to Section 12 of this Article. SECTION 6. Notice. Written notice of any special meeting shall be given to each director at least two days prior thereto delivered personally or by telegram, or at least five days prior thereto when delivered by mail at the address at which the director is most likely to be reached. Such notice shall be deemed to be delivered when deposited in the U.S. mail so addressed, with postage thereon prepaid if mailed, or when delivered to the telegraph company if sent by telegram. Any director may waive notice of any meeting by a writing filed with the secretary. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. SECTION 7. Quorum. A majority of the number of directors fixed by Section 2 of this Article III shall constitute a quorum for the transaction of business at any meeting of the board of directors, but if less than such majority is present at a meeting, a majority of the directors present may adjourn the meeting from time to time. Notice of any adjourned meeting shall be given in the same manner as prescribed by Section 6 of this Article III. SECTION 8. Manner of Acting. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors, unless governing law, rules or regulation requires otherwise. SECTION 9. Action Without a Meeting. Any action required or permitted to be taken by the board of directors at a meeting may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all the directors. 4
SECTION 10. Resignation. Any director may resign at any time by sending a written notice of such resignation to the home office of the Bank addressed to the secretary. Unless otherwise specified therein such resignation shall take effect upon receipt thereof by the secretary. SECTION 11. Vacancies. Any vacancy occurring in the board of directors may be filled by the affirmative vote of a majority of the remaining directors, even if less than a quorum of the board of directors by the stockholders. A director elected to fill a vacancy shall be elected to serve until the next election of directors by the stockholders. Any directorship to be filled by reason of an increase in the number of directors may be filled by the board of directors for a term of office continuing only until the next election of directors by the stockholders. SECTION 12. Compensation. Directors, as such, may receive a stated compensation for their services. By resolution of the board of directors, a reasonable fixed sum, and reasonable expenses of attendance, if any, may be allowed for actual attendance at each regular or special meeting of the board of directors. Members of either standing or special committees may be allowed such compensation for actual attendance at committee meetings as the board of directors may determine. SECTION 13. Presumption of Assent. A director of the Bank who is present at a meeting of the board of directors at which action on any Bank matter is taken shall be presumed to have assented to the action taken unless his dissent or abstention shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the secretary of the Bank within five days after the date he receives a copy of the minutes of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. SECTION 14. Removal of Directors. At a meeting of stockholders called expressly for that purpose, any director may be removed for cause by a vote of the holders of a majority of the shares then entitled to vote at an election of directors. If less than the entire board is to be removed, no one of the directors may be removed if the votes case against the removed would be sufficient to elect a director if then cumulatively voted at an election of the class of directors of which such director is a part. Whenever the holders of the shares of any class are entitled to elect one or more directors by the provisions of the charter or supplemental sections thereto, the provisions of this section shall apply, in respect to the removal of a director or directors so elected, to the vote of the holders of the outstanding shares of that class and not to the vote of the outstanding shares as a whole. SECTION 15. Age limitation on directors. No person shall be eligible for election, re-election, appointment, or reappointment to the board of directors of the Bank if such person is then more than 75 years of age. No director shall serve beyond the annual meeting of the Bank immediately following his attainment of 75 years of age. The age limitation shall not apply to a person serving as a director emeritus of the Bank. Directors emeritus may be appointed and their compensation for services (in an amount not to exceed those fees paid to voting directors) determined by resolution of the board of directors of the Bank. Only former directors of the Bank (including former directors of any other banks which have merged with, or otherwise been acquired by the Bank) shall be eligible to serve as directors emeritus. Directors emeritus shall be available for consultation with and advice to manage of the Bank. Directors emeritus may attend meetings of the board of directors, but shall have no vote on any matter acted upon by such board. ARTICLE IV. EXECUTIVE AND OTHER COMMITTEES SECTION 1. Appointment. The board of directors, by resolution adopted by a majority of the full board, may designate the chief executive officer and two or more of the other directors to constitute an executive committee. The designation of any committee pursuant to this Article IV and the delegation of authority thereto shall not operate to relieve the board of directors, or any director, of any responsibility imposed by law or regulation. SECTION 2. Authority. The executive committee, when the board of directors is not in session, shall have an may exercise all of the authority of the board of directors except to the extent, if any, that such 5
authority shall be limited by the resolution appointing the executive committee; and except also that the executive committee shall not have the authority of the board of directors with reference to: a declaration of dividends, and amendment of the charter or bylaws of the Bank, or recommending to the stockholders a plan of merger, consolidation, or conversion; the sale, lease or other disposition of all or substantially all of the property and assets of the Bank otherwise than in the usual and regular course of its business; a voluntary dissolution of the Bank; a revocation of any of the foregoing; or the approval of a transaction in which any member of the executive committee, directly or indirectly, has any material beneficial interest. SECTION 3. Tenure. Subject to the provisions of Section 8 of this Article IV, each member of the executive committee shall hold office until the next regular annual meeting of the board of directors following his designation and until his successor is designated as a member of the executive committee. SECTION 4. Meetings. Regular meetings of the executive committee may be held without notice at such times and places as the executive committee may fix from time to time by resolution. Special meetings of the executive committee may be called by a member thereof upon not less than one days' notices stating the place, date and hour of the meeting, which notice may be written or oral. Any member of the executive committee may waive notice of any meeting and no notice of any meeting need to be given to any member thereof who attends in person. The notice of a meeting of the executive committee need not state the business proposed to be transacted at the meeting. SECTION 5. Quorum. A majority of the members of the executive committee shall constitute a quorum for the transaction of the business at any meeting thereof, and action of the executive committee must be authorized by the affirmative vote of a majority of the members present at a meeting at which a quorum is present. SECTION 6. Action Without a Meeting. Any action required or permitted to be taken by the executive committee at a meeting may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the members of the executive committee. SECTION 7. Vacancies. Any vacancy in the executive committee may be filled by a resolution adopted by a majority of the full board of directors. SECTION 8. Resignations and Removal. Any member of the executive committee may be removed at any time with or without cause by resolution adopted by a majority of the full board of directors. Any member of the executive committee may resign from the executive committee at any time by giving written notice to the president or the secretary of the Bank. Unless otherwise specified therein, such resignation shall take effect upon receipt. The acceptance of such resignation shall not be necessary to make it effective. SECTION 9. Procedure. The executive committee shall elect a presiding officer from its members and may fix its own rules of procedure which shall not be inconsistent with these bylaws. It shall keep regular minutes of its proceedings and report the same to the board of directors for its information at the meeting thereof held next after the proceedings shall have occurred. SECTION 10. Other Committees. The board of directors may by resolution establish an audit committee, a loan committee or other committees composed of directors as they may determine to be necessary or appropriate for the conduct of the business of the Bank and may prescribe the duties, constitution and procedures thereof. ARTICLE V. OFFICERS SECTION 1. Positions. The officers of the Bank shall be a president, one or more vice presidents, a secretary and a treasurer, each of whom shall be elected by the board of directors. The board of directors may also designate the chairman of the board as an officer. The president shall be the chief executive officer, unless the board of directors designates the chairman of the board as chief executive officer. The president shall be a director of the Bank. The offices of the secretary and treasurer may be held by the same person and a vice president may also be either the secretary or the treasurer. The board of directors may designate one or more vice presidents as executive vice president or senior vice president. The board 6
of directors may also elect or authorize the appointment of such other officers as the business of the Bank may require. The officers shall have such authority and perform such duties as the board of directors may from time to time authorize or determine. In the absence of action by the board of directors, the officers shall have such powers and duties as generally pertain to their respective offices. SECTION 2. Election and Term of Office. The officers of the Bank shall be elected annually at the first meeting of the board of directors held after each annual meeting of the stockholders. If the election of officers is not held at such meeting, such election shall be held as soon thereafter as possible. Each officer shall hold office until his successor shall have been during elected and qualified or until his death or until he shall resign or shall have been removed in the manner thereinafter provided. Election or appointment of an officer, employee or agent shall not of itself create contract rights. The board of directors may authorize the Bank to enter into an employment contract with any officer in accordance with the regulation of the Federal Home Loan Bank Board; but no such contract shall impair the right of the board of directors to remove any officer at any time in accordance with Section 3 of this Article V. SECTION 3. Removal. Any officer may be removed by the board of directors whenever in its judgement the best interests of the Bank shall be served thereby, but such removal, other than for cause, shall be without prejudice to the contract rights, if any, of the person so removed. SECTION 4. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the board of directors for the unexpired portion of the term. SECTION 5. Remuneration. The remuneration of the officers shall be fixed from time to time by the board of directors. SECTION 6. Age limitation of officers. No person 65 years of age or above shall be eligible for election, re-election, appointment, or reappointment as an officer of the Bank. No officer shall serve beyond the annual meeting of the Bank immediately following his or her becoming 65. ARTICLE VI. CONTRACTS, LOANS, CHECKS AND DEPOSITS SECTION 1. Contracts. To the extent permitted by regulations of the Federal Home Loan Bank Board, and except as otherwise prescribed by the bylaws with respect to the certificates for shares, the board of directors may authorize any officer, employee, or agent of the Bank to enter into any contract or execute and deliver any instrument in the name of an on behalf of the Bank. Such authority may be general or confined to specific instances. SECTION 2. Loans. No loans shall be contracted on behalf of the Bank and no evidence of indebtedness shall be issued in its name unless authorized by the board of directors. Such authority may be general or confined to specific instances. SECTION 3. Checks, Drafts, Etc. All checks, drafts or orders or the payment of money, notes or other evidences of indebtedness issued in the name of the Bank shall be signed by one or more officers, employees or agents of the Bank in such manner as shall from time to time be determined by the board of directors. SECTION 4. Deposits. All funds of the Bank not otherwise employed shall be deposited from time to time to the credit of the Bank in any of its duly authorized depositories as the board of directors may select. ARTICLE VII. CERTIFICATES FOR SHARES AND THEIR TRANSFER SECTION 1. Certificates of Shares. Certificates representing shares of capital stock of the Bank shall be in such form as shall be determined by the board of directors and approved by the Federal Home Loan Bank Board. Such certificates shall be signed by the chief executive officer or by any other officer of the Bank authorized by the board of directors, attested by the secretary of an assistant secretary, and sealed with the corporate seal or a facsimile thereof. The signatures of such officers upon a certificate may be facsimiles if the certificate is manually signed on behalf of a transfer agent or a registrar, other than the Bank itself or one of its employees. Each certificate for shares of capital stock shall be consecutively 7
numbered or otherwise identified. The name and address of the person to whom the shares are issue, with the number of shares and date of issue, shall be entered on the stock transfer books of the Bank. All certificates surrendered to the Bank for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost or destroyed certificate, a new certificate may be issued therefor upon such terms and indemnity to the Bank as the board of directors may prescribe. SECTION 2. Transfer of Shares. Transfer of shares of capital stock of the Bank shall be made only on its stock transfer books. Authority for such transfer shall be given only by the holder of record thereof or by his legal representative, who shall furnish proper evidence of such authority, or by his attorney thereunto authorized by power of attorney duly executed and filed with the Bank. Such transfer shall be made only on surrender for cancellation of the certificate for such shares. The person in whose name shares of capital stock stand on the books of the Bank shall be deemed by the Bank to be the owner thereof for all purposes. ARTICLE VIII. FISCAL YEAR; ANNUAL AUDIT The fiscal year of the Bank shall end on the 31st day of December of each year. The Bank shall be subject to an annual audit as of the end of its fiscal year by independent public accountants appointed by by and responsible to the board of directors. The appointment of such accountants shall be subject to annual ratification by the stockholders. ARTICLE IX. DIVIDENDS Subject to the terms of the Bank's charter and the regulations and orders of the Federal Home Loan Bank Board, the board of director may, from time to time, declare and the Bank may pay, dividends to its outstanding shares of capital stock. ARTICLE X. CORPORATE SEAL The board of directors shall approve a Bank seal. ARTICLE XI. AMENDMENTS These bylaws may be amended in any manner not inconsistent with applicable laws, rules, regulations or the charter at any time by a majority of the full board of directors, or by a majority vote of the votes cast by the shareholders of the Bank at any legal meeting called expressly for that purpose. 8
WSFS CERTIFICATE I, BELINDA K. RUMPLE, Assistant Corporate Secretary of Wilmington Savings Fund Society, FSB, certify that the attached Certificate of corporate Resolution is a true and correct copy and said resolution appears in the Corporate Minutes of January 26, 1988. I further certify that at said meeting a quorum was present and acting throughout. Belinda K. Rumple January 4, 1991 Wilmington Savings Fund Society FSB 838 S Market St, Wilmington, DE 19801 (302) 571-7090.
CERTIFICATE OF CORPORATE RESOLUTION I, RONALD C. SMITH, Secretary of the Wilmington Savings Fund Society, FSB ("WSFS ) a corporation organized under the laws of the United States, do hereby certify that at a regular monthly meeting of the Board of Directors of said corporation, duly held at its offices on January 26, 1988, at which a quorum was present and acting throughout, the following Resolution was duly moved, seconded and unanimously adopted: BE IT RESOLVED, that the Board of Directors does hereby amend the Bylaws of the Wilmington Savings Fund Society, FSB, to add an Article to read as follows: ARTICLE IX. INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES Section 1. General. The Bank shall indemnify any person against whom an action is brought or threatened because that person is or was a director, officer or employee of the Bank or a director, officer or employee of any wholly-owned subsidiary, only as provided in this Article, for any amount for which that person becomes liable under a judgment or settlement in such action plus reasonable costs and expenses, including attorney's fees actually paid or incurred by that person in defending or settling such action, or in enforcing his rights under this section, if he obtains a favorable judgment in such enforcement action: Provided, that nothing herein shall authorize indemnification by the Bank of directors, officers or employees of affiliates, affiliated persons, or subsidiaries of the Bank for actions in their capacity as such unless such person was a director, officer or employee of a wholly-owned subsidiary. Section 2. Conditions. Indemnification shall be made to a person described in Section 1 if final judgment on the merits is in his favor. In addition, in the case of settlement, final judgment against him or final judgment in his favor other than on the merits, indemnification shall be made to a person described in Section l if it is determined that he was acting in good faith within the scope of his employment or authority as he could reasonably have perceived it under the circumstances and for a purpose he could reasonably have believed under the circumstances was in the best interests of the Bank or its members, and in the case of criminal action, he had no reasonable cause to believe his conduct was unlawful. Such determination shall be made by the board of directors by a majority vote of a quorum consisting of disinterested directors. However, no indemnification shall be made unless the Bank gives the Board at least 60 days' notice of its intention to make such indemnification. Such notice shall state the facts on which the action arose, the terms of any settlement, and any disposition of the action by a court. A
copy of such notice, and a certified copy of the resolution containing the required determination by the board of directors, shall be sent to the Board in accordance with its regulations. No such indemnification shall be made if the Board or its designee advises the Bank in writing, within such notice period, of its objection thereto. In addition, when the action is brought or threatened by the Bank or on behalf of the Bank, indemnification shall be limited to reasonable costs and expenses as described in Section l. Under no circumstances may indemnification be made in connection with any claim, issue or matter with regard to which there has been final judgment that the person was liable for negligence or misconduct in the performance of his duty to the Bank. Section 3. Insurance. The Bank may obtain insurance to protect it and its directors, officers and employees or the directors, officers and employees of a wholly-owned subsidiary from potential losses arising from claims against any of them for alleged wrongful acts, or wrongful acts committed in their capacity as directors, officers or employees: Provide , that the Bank may not obtain insurance which provides for payment of losses of any person incurred as a consequence of his willful or criminal misconduct. Section 4. Advance Payment of Expenses, If a majority of the disinterested directors of the Bank concludes that, in connection with any action, any person ultimately may become entitled to indemnification under this section, such directors may authorize payment of reasonable costs and expenses, including attorney's fees, arising from the defense or settlement of such action. Nothing in this section shall prevent the directors of a Bank from imposing such conditions on a payment of expenses as they deem warranted and in the interests of the Bank. Before making advance payment of expenses under this section, the Bank shall obtain an agreement in writing that the Bank will be repaid if the person on whose behalf payment is made is later determined not to be entitled to such indemnification. Section 5. Indemnification. Nothing in this section shall authorize indemnification of directors, officers or employees of the Bank when such indemnification would contravene public policy as expressed by federal statutes or the regulations of the Board. Section 6. Rights Not Exclusive. The foregoing rights of indemnification or reimbursement shall not be exclusive of other rights to which the person referred to above, or their heirs, executors, administrators or legal representatives, may be entitled as a matter of law, and the Bank may indemnify such persons to the extent permitted by the pertinent rules and regulations of the Federal Home Loan Bank Board or
other statutory law, as such regulations or law may be amended from time to time. Section 7. Definitions and Rules of Construction. Definitions and rules of construction for purposes of this Article shall be in accordance with Federal Home Loan Bank Board regulations on indemnification of directors, officers or employees. I further certify that the foregoing Resolution remains in full force and effect, and has not been rescinded or modified, and conforms with the Articles of Incorporation and Bylaws of the corporation. IN WITNESS WHEREOF, I have hereunto set my hand as Secretary of WSFS and affixed its corporate seal, by order of the Board of Directors, this ____ day of January, 1988. Ronald C. Smith, Secretary (SEAL)
AMENDMENT TO BYLAWS WILMINGTON SAVINGS FUND SOCIETY, FSB February 27, 1992 Be it resolved, that the Board of Directors of Wilmington Savings Fund Society, FSB, upon motion duly made and seconded, hereby adopt by a majority vote of the full Board of Directors, the following amendments to the bylaws of Wilmington Savings Fund Society: 1) Article II, Section 3 is amended by changing "Federal Home Loan Bank Board ("Board")" to "Office of Thrift Supervision ("OTS")" and by deleting the reference to the Federal Saving and Loan Insurance Corporation. 2) Article II, Section 4 is amended by changing "Federal Home Loan Bank Board" to "Office of Thrift Supervision". 3) Article II, Section 7 is amended by changing "Board's" to "OTS'". 4) Article II, Section 14 is amended by changing "Federal Horne Loan Bank Board" to "Office of Thrift Supervision". 5) Article III, Section 2 is amended by deleting the first sentence and replacing it with the following: The board of directors shall consist of at least seven (7) but not more than fifteen (15) members as determined by a vote of the majority of the full board of directors. The number of directors shall remain fixed until a majority of the full board of directors next vote to change the number of directors. 6) Article III, section 4 is amended by deleting the existing sentence and replacing it with the following: Each Director shall at all times be the beneficial owner of no less than 100 shares of capital stock of the Bank unless the Bank is a wholly owned subsidiary of a holding company, in which case each Director shall at all times be the beneficial owner of no less than 100 shares of capital stock of the holding company. 7) Article III, Section 6 is amended by changing "two days" to "one day" in the first sentence. 8) Article III, Section 15 is amended by adding the following as a fourth sentence: Notwithstanding anything to the contrary contained in this Section 15, a majority of the full Board (excepting the director who has reached age 75) may vote to permit a director who has reached the age of 75 to remain on the Board for up to an additional twelve months provided the director, during the additional period, does not stand for election to a term exceeding the length of the extension granted by the Board.
XXXXX9) Article V, Section 1 is amended by deleting the first sentence and replacing it with the following two sentences: The officers of the Bank shall be a president, one or more vice presidents, a secretary and a treasurer. The president, secretary, treasurer and any executive vice presidents shall be elected by the Board of Directors. 10) Article V, Section 2 is amended by changing "Federal Home Loan Bank Board" to "Office of Thrift Supervision". 11) Article V, Section 6 is deleted in its entirety. 12) Article VI, Section l is amended by changing "Federal Home Loan Bank Board" to "Office of Thrift Supervision". 13) Article VII, Section 1 is amended by changing "Federal Home Loan Bank Board" to "Office of Thrift Supervision". 14) Article IX is amended by changing "Federal Home Loan Bank Board" to "Office of Thrift Supervision". By: Charles G. Cheleden, Chairman By: Joseph R. Julian By: William J. Miller, Jr. By: Randall T. Murrill, Jr. By: Thomas P. Preston By: Dr. Robert L. Richards, Jr. By: Marvin N. Schoenhals By: Thomas C. Shea By: James E. Vachris, Sr. February 13, 1992
EXHIBIT 6
September 20, 2021
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the undersigned by Federal, State, Territorial, or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
| Very truly yours, | ||
| WILMINGTON SAVINGS FUND SOCIETY, FSB | ||
| By: | /s/ Geoffrey J. Lewis | |
| Name: Geoffrey J. Lewis | ||
| Title: Vice President | ||
EXHIBIT 7
REPORT OF CONDITION OF
WILMINGTON SAVINGS FUND SOCIETY, FSB AS OF JUNE 30, 2021
(see attached)
Wilmington Savings Fund Society - FDIC - Certificate Number: 17838 Consolidated Report of Condition for Insured Banks and Savings Associations for June 30, 2021 FFIEC041 Page 17 of 86 RC-1 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter. Schedule RC--Balance Sheet Dollar Amounts in Thousands RCON Amount Assets 1. Cash and balances from depository institutions (from Schedule RC-A): a. Noninterest-bearing balances and currency and coin (1) 0081 605,630 1.a. b. Interest-bearing balances (2) 0071 1,807,375 1.b. 2. Securities a. Held-to-maturity securities (from Schedule RC-B, column A) (3) JJ34 95,126 2.a. b. Available-for-sale debt securities (from Schedule RC-B, column D) 1773 3,366,579 2.b. c. Equity securities with readily determinable fair values not held for trading (4) JA22 0 2.c. 3. Federal funds sold and securities purchased under agreements to resell: a. Federal funds sold B987 0 3.a. b. Securities purchased under agreements to resell (5,6) B989 0 3.b. 4. Loans and lease financing receivables (from Schedule RC-C): a. Loans and leases held for sale 5369 113,173 4.a. b. Loans and leases held for investment B528 8,264,264 4.b. c. LESS: Allowance for loan and lease losses (7) 3123 132,418 4.c. d. Loans and leases held for investment, net of allowance (item 4.b minus 4.c) B529 8,131,846 4.d. 5. Trading assets (from Schedule RC-D) 3545 0 5. 6. Premises and fixed assets (including capitalized leases) 2145 242,001 6. 7. Other real estate owned (from Schedule RC-M) 2150 1,044 7. 8. Investments in unconsolidated subsidiaries and associated companies 2130 4,524 8. 9. Direct and Indirect Investments in real estate ventures 3656 0 9. 10. Intangible assets (from Schedule RC-M) 2143 527,882 10. 11. Other assets (from Schedule RC-F) (6) 2160 214,469 11. 12. Total assets (sum items 1 through 11) 2170 15,109,649 12. Liabilities 13. Deposits: a. In domestic offices (sum of totals of columns A and C from Schedule RC-E) 2200 12,846,711 13.a. (1) Noninterest-bearing (8) 6631 4,335,580 13.a.1. (2) Interest-bearing 6636 8,511,131 13.a.2. b. Not applicable 14. Federal funds purchased and securities sold under agreements to repurchase: a. Federal funds purchased (9) B993 0 14.a. b. Securities sold under agreements to repurchase (10) B995 0 14.b. 15. Trading liabilities (from Schedule RC-D) 3548 0 15. 16. Other borrowed money (includes mortgage indebtedness) (from Schedule RC-M) 3190 21,634 16. 17. and 18. Not applicable 19. Subordinated notes and debentures (11) 3200 0 19. 1 Includes cash items in process of collect ion and unposted debits. 2 Includes time certificates of deposit not held for trading. 3 Institutions that have adopted ASU 2016-13 should report in item 2.a amounts net of any applicable allowance for credit losses, and item 2.a should equal Schedule RC-8, item 8, column A, less Schedule Rl-8, Part II, item 7, column B. 4 Item 2.c is to be completed by all institutions. See the instructions for this item and the Glossary entry for "Securities Activities" for further detail on accounting for investments in equity securities. 5 Includes all securities resale agreements, regardless of maturity. 6 Institutions that have adopted ASU 2016-13 should report in items 3.b and 11 amounts net of any applicable allowance for credit losses. 7 Institutions that have adopted ASU 2016-13 should report in item 4.c the allowance for credit losses on loans and leases. 8 Includes noninterest-bearing, demand, time, and savings deposits. 9 Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, "Other borrowed money." 10 Includes all securities repurchase agreements, regardless of maturity. 11 Includes limited-life preferred stock and related surplus. Reporting Period: June 30, 2021 July 28, 2021 2:18 PM
Wilmington Savings Fund Society - FDIC Certificate Number: 17838 Schedule RC-Continued FFIEC041 Page 18 of 86 RC-2 Dollar Amounts in Thousands RCON Amount Liabilities-continued 20. Other liabilities (from Schedule RC-G) 2930 299,470 20. 21. Total liabilities (sum of items 13 through 20) 2948 13,167,815 21. 22. Not applicable Equity Capital Bank Equity Capital 23. Perpetual preferred stock and related surplus 3838 0 23. 24. Common stock 3230 0 24. 25. Surplus (excludes all surplus related to preferred stock) 3839 1,538,174 25. 26. a. Retained earnings 3632 395,665 26.a. b. Accumulated other comprehensive income (1) B530 10,238 26.b. c. Other equity capital components (2) A130 0 26.c. 27. a. Total bank equity capital (sum of items 23 through 26.c) 3210 1,944,077 27.a. b. Noncontrolling (minority) interests in consolidated subsidiaries 3000 (2,243) 27.b. 28. Total equity capital (sum of items 27.a and 27.b) G105 1,941,834 28 29. Total liabilities and equity capital (sum of items 21 and 28) 3300 15,109,649 29. Memoranda To be reported with the March Report of Condition. 1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external auditors as of any date during 2020 RCON Number 6724 NR M.1. 1a = An integrated audit of the reporting institution's financial statements and its internal control over financial reporting conducted in accordance with the standards of the American Institute of Certified Public Accountants (AICPA) or the Public Company Accounting Oversight Board (PCAOB) by an independent public accountant that submits a report on the institution 1b = An audit of the reporting institution's financial statements only conducted in accordance with the auditing standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the institution 2a = An integrated audit of the reporting institution's parent holding company's consolidated financial statements and its internal control over financial reporting conducted in accordance with the standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the consolidated holding company (but not on the institution separately) 2b = An audit of the reporting institution's parent holding company's consolidated financial statements only conducted in accordance with the auditing standards of the AICPA or the PCAOB by an independent public accountant that submits a report on the consolidated holding company (but not on the institution separately) 3 = This number is not to be used 4 = Directors' examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state-chartering authority) 5 = Directors' examination of the bank performed by other external auditors (may be required by state-chartering authority) 6 = Review of the bank's financial statements by external auditors 7 = Compilation of the bank's financial statements by external auditors 8 = Other audit procedures (excluding tax preparation work) 9 = No external audit work To be reported with the March Report of Condition. 2. Bank's fiscal year-end date (report the date in MMDD format) RCON Date 8678 NR M.2. 1 Includes, but is not limited to, net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, and accumulated defined benefit pension and other post retirement plan adjustments. 2 Includes treasury stock and unearned Employee Stock Ownership Plan shares. Reporting Period: June 30, 2021 July 28, 2021 2:18 PM