FIFTH SUPPLEMENTAL INDENTURE
This FIFTH SUPPLEMENTAL INDENTURE, dated as of July 22, 2020 (this “Fifth Supplemental Indenture”), is entered into by and between Total Capital International, a société anonyme duly organized and existing under the laws of the Republic of France, registered with the Registre du Commerce et des Sociétés of Nanterre under number 479 858 854 (herein called the “Company”), having its principal office at 2, place Jean Millier, La Défense 6, 92400 Courbevoie, France, and TOTAL SE, a European company (Societas Europaea or SE) duly organized and existing under the laws of the Republic of France, registered with the Registre du Commerce et des Sociétés of Nanterre under number 542 051 180 (herein called the “Guarantor”), having its principal office at 2, place Jean Millier, La Défense 6, 92400 Courbevoie, and The Bank of New York Mellon, acting through its London Branch, as Trustee (herein called the “Trustee”) having its principal corporate trust office at One Canada Square, London E14 5AL, United Kingdom.
RECITALS
WHEREAS, the Company and TOTAL S.A., a société anonyme organized under the laws of the Republic of France (such company, as organized as a société anonyme, “TOTAL S.A.”), have heretofore executed and delivered to the Trustee the Indenture, dated as of February 17, 2012 (herein called the “Base Indenture,” and together with the First Supplemental Indenture (as defined below) and this Fifth Supplemental Indenture, the “Indenture”), providing for the issuance from time to time outside France of one or more series of the Company’s unsecured debentures, notes or other evidences of indebtedness (herein and in the Base Indenture called the “Securities”), the forms and terms of which are to be determined as set forth in Sections 201 and 301 of the Base Indenture;
WHEREAS, the Company, TOTAL S.A. and the Trustee entered into a first supplemental indenture dated February 19, 2019 (the “First Supplemental Indenture”), which amended and supplemented certain provisions of the Base Indenture;
WHEREAS, for the avoidance of doubt, The Bank of New York Mellon, acting through its London Branch, acts as Trustee and Paying Agent and The Bank of New York Mellon, New York, acts as Registrar and Transfer Agent under the Indenture;
WHEREAS, each series of Securities outstanding under the Indenture is guaranteed by TOTAL S.A., and the Trustee has been appointed as trustee for each such series;
WHEREAS, pursuant to a transformation plan adopted by the Board of Directors of the Guarantor on October 29, 2019, as approved by TOTAL S.A.’s extraordinary general meeting of the shareholders on May 29, 2020, TOTAL S.A. has converted its legal form from a société anonyme into a European company (Societas Europaea or SE) (such conversion, the “Transformation”) in accordance with Regulation (EC) No. 2157/2001 and Directive No. 2001/86/EC of the European Council dated October 8, 2001 and article L. 255-245-1 of the French Commercial Code (Code de commerce) (TOTAL S.A. following such Transformation, as organized as a European company, “TOTAL SE” or the “Guarantor”), and the Transformation has taken effect on July 16, 2020;
WHEREAS, under French law, the Transformation does not imply a change in legal personality or create a new corporation and TOTAL SE will have the same assets and liabilities both before and after the Transformation; however, the Guarantor wishes to affirm its obligations under the terms of the Guarantees of the Company’s Securities;
WHEREAS, Section 901(1) of the Base Indenture permits supplements thereto without the consent of Holders to evidence the succession of another corporation, including as substitute obligor, to TOTAL S.A. and the assumption by any such successor of the covenants of TOTAL S.A. contained in the Indenture and the Guarantees;
