EXHIBIT 4.2
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DATED AS OF MAY 4, 2007
NEXEN INC.
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
FIRST SUPPLEMENTAL INDENTURE
TO THE
TRUST INDENTURE
DATED AS OF MAY 4, 2007
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THIS FIRST SUPPLEMENTAL INDENTURE (this "FIRST SUPPLEMENTAL INDENTURE") dated
as of May 4, 2007 between NEXEN INC., a corporation incorporated under the
Canada Business Corporations Act and having its head office in the City of
Calgary, in the Province of Alberta (the "ISSUER") and DEUTSCHE BANK TRUST
COMPANY AMERICAS, a banking corporation duly organized and existing under the
laws of the State of New York, having an office in the City of New York, in the
State of New York (the "Trustee")
RECITALS OF THE COMPANY
WHEREAS, the Issuer and the Trustee entered into an Indenture, dated as of May
4, 2007 (the "ORIGINAL INDENTURE"). Section 9.01 of the Original Indenture
provides that the Issuer and the Trustee may, without the consent of any
Holder, enter into a supplemental indenture to establish the form or terms of
Securities of any series as permitted by Section 2.01 and 3.01 thereof.
WHEREAS, pursuant to Sections 2.01 and 3.01 of the Original Indenture, the
Issuer desires to provide for the establishment of a series of Securities under
the Original Indenture, and the form and terms thereof, as hereinafter set
forth.
WHEREAS, the Issuer has requested that the Trustee execute and deliver this
First Supplemental Indenture. The Issuer has delivered to the Trustee an
Opinion of Counsel and an Officers' Certificate pursuant to Sections 1.02, 3.03
and 9.03 of the Original Indenture to the effect, among other things, that all
conditions precedent provided for in the Indenture to the Trustee's execution
and delivery of this First Supplemental Indenture have been complied with. All
acts and things necessary have been done and performed to make this First
Supplemental Indenture enforceable in accordance with its terms, and the
execution and delivery of this First Supplemental Indenture has been duly
authorized in all respects.
WHEREAS the proper officers of the Issuer have duly authorized the
creation and issuance of: (i) a series of Securities to be designated as 5.65%
Notes due 2017 (the "2017 NOTES") and to be initially limited (subject to the
exceptions described herein and in the Original Indenture) to the aggregate
principal amount of U.S.$250,000,000; and (ii) a series of Securities to be
designated as 6.40% Notes due 2037 (the "2037 NOTES" and, together with the
2017 Notes, the "NOTES") and to be initially limited (subject to the exceptions
described herein and in the Original Indenture) to the aggregate principal
amount of U.S.$1,250,000,000; the further terms and conditions thereof being
hereinafter set forth, all in accordance with a resolution of the directors of
the Issuer;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH: For and
in consideration of the premises and the purchase of the Securities (as herein
defined) by the holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all holders of the Securities, as follows:
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1. INTERPRETATIONS AND AMENDMENTS
1.1 FIRST SUPPLEMENTAL INDENTURE
As used herein "FIRST SUPPLEMENTAL INDENTURE", "HERETO", "HEREIN",
"HEREOF", "HEREBY", "HEREUNDER" and similar expressions refer to this First
Supplemental Indenture and not to any particular Article, Section or other
portion hereof and include any and every instrument supplemental or ancillary
hereto or in implementation hereof, and further include the terms of the Notes
set forth in the form of 2017 Notes annexed as Schedule A hereto and the form
of 2037 Notes annexed as Schedule B hereto.
1.2 DEFINITIONS IN FIRST SUPPLEMENTAL INDENTURE
All terms contained in this First Supplemental Indenture which are
defined in the Original Indenture and not defined herein shall, for all
purposes hereof, have the meanings given to such terms in the Original
Indenture, unless the context otherwise specifies or requires; provided,
however, that notwithstanding the foregoing, the terms "ISSUER" and "TRUSTEE"
shall have the respective meanings given to them in the Original Indenture.
1.3 INTERPRETATION NOT AFFECTED BY HEADINGS
The division of this First Supplemental Indenture into Articles and
Sections, the provision of the table of contents hereto and the insertion of
headings are for convenience of reference only and shall not affect the
construction or interpretation of this First Supplemental Indenture.
2. NOTES
2.1 FORM AND TERMS OF NOTES
There shall be and there is hereby created for issuance under the
Original Indenture, as supplemented by this First Supplemental Indenture; (i) a
series of Securities which shall consist of an aggregate principal amount of
U.S.$250,000,000 2017 Notes; and (ii) a series of Securities which shall
consist of an aggregate principal amount of U.S.$1,250,000,000 2037 Notes
provided, however, that if the Issuer shall, at any time after the date hereof,
increase the principal amount of either or both series of Notes which may be
issued and issue such increased principal amount (or any portion thereof), then
any such additional Notes so issued shall have the same form and terms (other
than the date of issuance and the date from which interest thereon shall begin
to accrue and, under certain circumstances, the first interest payment date),
and shall carry the same right to receive accrued and unpaid interest, as the
Notes theretofore issued; and provided, further, that, notwithstanding the
foregoing, the Issuer shall not be entitled to increase the principal amount of
Notes which may be issued or issue any such increased principal amount if the
Issuer has effected satisfaction and discharge of the Indenture pursuant to
Section 4.01 of the Original Indenture or defeasance or covenant defeasance
pursuant to Article 13 of the Original Indenture.
The 2017 Notes will mature, and the principal of the 2017 Notes and
accrued and unpaid interest thereon will be due and payable, on May 15, 2017,
or such earlier date as the principal of
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any of the 2017 Notes may become due and payable in accordance with the
provisions of the Original Indenture and this First Supplemental Indenture.
The 2037 Notes will mature, and the principal of the 2037 Notes and
accrued and unpaid interest thereon will be due and payable, on May 15, 2037,
or such earlier date as the principal of any of the 2037 Notes may become due
and payable in accordance with the provisions of the Original Indenture and the
First Supplemental Indenture.
The Notes shall bear interest on the principal amount thereof from May
4, 2007 or from the last date to which interest shall have been paid or duly
made available for payment on the Notes, whichever is later, at the rate of
5.65% per annum in the case of the 2017 Notes and at the rate of 6.40% per
annum in the case of the 2037 Notes, in each case payable semi-annually in
arrears on May 15 and November 15 (each, an "INTEREST PAYMENT DATE") in each
year, commencing November 15, 2007, until the principal of and premium, if any,
on the applicable series of Notes is paid or duly made available for payment;
and should the Issuer at any time default in the payment of any principal of,
or premium, if any, or interest on either series of the Notes when due, the
Issuer shall pay interest (such interest to be payable on demand), to the
extent permitted by law, on the amount in default at the same rate applicable
to such series of Notes. Interest on the Notes shall be computed on the basis
of a 360-day year comprised of twelve 30-day months. The interest payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Original Indenture, be paid to the Persons in whose names the
Notes (or one or more predecessor Notes) are registered at the close of
business on May 1 or November 1 (the "REGULAR RECORD DATES"), as the case may
be, immediately prior to such Interest Payment Date, regardless of whether any
such Regular Record Date is a business day. Any such interest on the Notes not
so punctually paid or duly provided for on any Interest Payment Date shall be
payable, as applicable, as provided in the forms of Notes annexed hereto as
Schedule A and Schedule B to this First Supplemental Indenture.
For the purposes only of the disclosure required by the INTEREST ACT
(Canada), and without affecting the amount of interest payable to any holder of
a Note or the calculation of interest on any Note, if the rate of interest on
any Note is calculated on the basis of a year (the "DEEMED year") which
contains fewer days than the actual number of days in the calendar year of
calculation, such rate of interest shall be expressed as a yearly rate for the
purposes of the INTEREST ACT (Canada) by multiplying such rate of interest by
the actual number of days in the calendar year of calculation and dividing it
by the number of days in the deemed year.
All payments of principal of and premium, if any, and interest on the
Notes will be made 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,
and all references herein to "UNITED STATES DOLLARS", "U.S.$" or "U.S. DOLLARS"
shall be deemed to refer to such coin or currency of the United States of
America.
The principal of and premium, if any, and interest on the Notes shall
be payable, and the Notes may be surrendered for exchange, registration,
transfer or discharge from registration, at the Corporate Trust Office of the
Trustee in the City of New York, New York, and in such other places as the
Issuer may from time to time designate in accordance with the Original
Indenture.
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The Trustee is hereby appointed as the initial Paying Agent, registrar and
transfer agent for the Notes in the City of New York, New York.
The Notes shall be issued only as fully registered Notes, without
coupons, in denominations of U.S.$2,000 and integral multiples of $1,000
thereafter. Each series of Notes initially will be represented by one or more
global Securities (collectively, the "GLOBAL NOTES") registered in the name of
The Depository Trust Company, as Depositary or its nominee, or a successor
depositary or its nominee.
The certificates representing the Notes shall bear the following
legend:
"THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE
TRUST INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN CERTIFICATED FORM IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY."
The Notes and the certificate of the Trustee endorsed thereon shall be
in the form set out in Schedule A, in the case of the 2017 Notes, and Schedule
B, in the case of the 2037 Notes, to this First Supplemental Indenture with
such appropriate insertions, omissions, substitutions and variations as the
Trustee may approve and shall be numbered in such manner as the Trustee may
approve, such approvals of the Trustee concerning any Note to be conclusively
evidenced by its certification of such Note.
The Security Register referred to in Section 3.05 of the Original
Indenture shall, with respect to the Notes, be kept at the office or agency in
the City of New York, New York that the Issuer may from time to time designate
for such purpose (which shall initially be the Corporate Trust Office of the
Trustee in the City of New York, New York), and at such other place or places
as the Issuer with the approval of the Trustee may hereafter designate.
The Notes shall be subject to redemption at the option of the Issuer
as provided in Article 3 of this First Supplemental Indenture. The Issuer shall
not be required to redeem, purchase or repay Notes pursuant to any mandatory
redemption, sinking fund or analogous provision or at the option of the holders
thereof. The Notes will not be convertible into or exchangeable for securities
of any Person.
The Notes shall have the other terms and provisions set forth in the
forms of Notes attached hereto as Schedule A to this First Supplemental
Indenture, in the case of the 2017 Notes, and Schedule B to this First
Supplemental Indenture, in the case of the 2037 Notes, with the same force and
effect as if such terms and provisions were set forth in full herein.
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2.2 ISSUANCE OF NOTES
2017 Notes in the aggregate principal amount of U.S.$250,000,000 and
2037 Notes in the aggregate principal amount of U.S.$1,250,000,000 shall be
executed by the Designated Officer of the Issuer and delivered by the Issuer to
the Trustee on the date of issue for authentication and delivery pursuant to
and in accordance with the provisions of Section 3.03 of the Original Indenture
and, upon the requirements of such provisions being complied with, the Notes
shall be authenticated by or on behalf of the Trustee and delivered by it to or
upon the Issuer Order of the Issuer without any further act or formality on the
part of the Issuer. The Trustee shall have no duty or responsibility with
respect to the use or application of any of the Notes so certified and
delivered or the proceeds thereof.
3. REDEMPTION OF NOTES
3.1 REDEMPTION OF NOTES
Each series of the Notes will be redeemable at any time, in whole or
from time to time in part, at the option of the Issuer (in the manner and in
accordance with and subject to the terms and provisions set forth in Article 11
of the Original Indenture), at a Redemption Price equal to the greater of:
(a) 100% of the principal amount of the Notes to be redeemed; and
(b) the sum of the present values of the remaining scheduled
payments of principal and interest thereon (exclusive of
interest accrued to the date of redemption) 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 20 basis points in the case of the 2017 Notes, and
plus 35 basis points in the case of the 2037 Notes;
plus in each case accrued interest to the Redemption Date; provided that
installments of interest on Notes which are due and payable on any date falling
on or prior to a Redemption Date will be payable to the registered holders of
such Notes (or one or more predecessor Notes), registered as such as of the
close of business on the relevant Regular Record Dates.
The Issuer will provide notice to the Trustee prior to the Redemption
Date of the calculation of the Redemption Price.
3.2 ADDITIONAL DEFINITIONS
For the purposes of this First Supplemental Indenture, the following
expressions shall have the following meanings:
"COMPARABLE TREASURY ISSUE" means the U.S. Treasury security selected
by an Independent Investment Banker as having a maturity comparable to the
remaining term of the applicable series of 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 comparable
maturity to the remaining term of such Notes;
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"COMPARABLE TREASURY PRICE" means, with respect to any redemption
date, (i) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on the
third business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "COMPOSITE 3:30 P.M. QUOTATIONS FOR U.S.
GOVERNMENT SECURITIES" or (ii) if such release (or any successor release) is
not published or does not contain such prices on such business day, (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 Issuer is unable to obtain four such Reference
Treasury Dealer Quotations, the average of all such Quotations;
"INDEPENDENT INVESTMENT BANKER" means one of the Reference Dealers
selected by the Issuer;
"REFERENCE DEALER" means each of Banc of America Securities LLC,
Citigroup Global Markets Inc. and Deutsche Bank Securities Inc. and their
respective successors, and two other firms that are primary U.S. government
securities dealers in the City of New York (each a "PRIMARY TREASURY Dealer")
which the Issuer specifies from time to time; provided, however, that if any of
the foregoing Reference Dealers shall cease to be a Primary Treasury Dealer,
the Issuer shall substitute therefor another Primary Treasury Dealer;
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Dealer and any redemption date, the average, as determined by the
Issuer, 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 Issuer by such Reference Dealer at 3:30 p.m. (New York City
time) on the third business day preceding such redemption date; and
"TREASURY RATE" means, with respect to any redemption date, the rate
per year equal to the semi-annual equivalent yield to maturity 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.
4. GENERAL
4.1 EFFECTIVENESS
This First Supplemental Indenture will become effective upon its
execution and delivery.
4.2 EFFECT OF RECITALS
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Issuer, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Issuer of the Securities or the proceeds thereof. The Trustee makes no
representations as to the validity or sufficiency of this First Supplemental
Indenture or of the Securities except that the Trustee represents that it is
duly authorized to execute and deliver this First Supplemental Indenture,
authenticate the Securities and perform its obligations under the Original
Indenture and
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hereunder, and that the statements made by it or to be made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Issuer
are true and accurate.
4.3 RATIFICATION OF ORIGINAL INDENTURE
The Original Indenture as supplemented by this First Supplemental
Indenture is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Original Indenture in the
manner and to the extent herein and therein provided.
4.4 GOVERNING LAW
This First Supplemental Indenture, the Original Indenture as
supplemented hereby and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
4.5 SEVERABILITY
In case any provision in this First Supplemental Indenture, the
Original Indenture as supplemented hereby or in the Securities 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.
4.6 ACCEPTANCE OF TRUST
The Trustee hereby accepts the trusts in this First Supplemental
Indenture declared and provided for and agrees to perform the same upon the
terms and conditions herein before set forth in trust for the various Persons
who shall from time to time be Note holders subject to all the terms and
conditions herein set forth.
4.7 COUNTERPARTS AND FORMAL DATE
This First Supplemental 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 instrument
and notwithstanding their date of execution shall be deemed to bear the date
first above written.
IN WITNESS WHEREOF the parties hereto have executed this Supplemental
Indenture on the date first above written.
NEXEN INC.
Per: /s/ Marvin F. Romanow
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Marvin F. Romanow
Executive Vice President and
Chief Financial Officer
Per: /s/ Una M. Power
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Una M. Power
Treasurer
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as trustee
By Deutsche Bank National Trust Company
Per: /s/ Yana Kalachikova
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Name: Yana Kalachikova
Title: Assistant Vice President
Per: /s/ Rodney Gaughan
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Name: Rodney Gaughan
Title: Vice President
TABLE OF CONTENTS
1. INTERPRETATIONS AND AMENDMENTS..........................................2
1.1 FIRST SUPPLEMENTAL INDENTURE......................................2
1.2 DEFINITIONS IN FIRST SUPPLEMENTAL INDENTURE.......................2
1.3 INTERPRETATION NOT AFFECTED BY HEADINGS...........................2
2. NOTES...................................................................2
2.1 FORM AND TERMS OF NOTES...........................................2
2.2 ISSUANCE OF NOTES.................................................5
3. REDEMPTION OF NOTES.....................................................5
3.1 REDEMPTION OF NOTES...............................................5
3.2 ADDITIONAL DEFINITIONS............................................5
4. GENERAL.................................................................6
4.1 EFFECTIVENESS.....................................................6
4.2 EFFECT OF RECITALS................................................6
4.3 RATIFICATION OF ORIGINAL INDENTURE................................7
4.4 GOVERNING LAW.....................................................7
4.5 SEVERABILITY......................................................7
4.6 ACCEPTANCE OF TRUST...............................................7
4.7 COUNTERPARTS AND FORMAL DATE......................................7