SECOND SUPPLEMENTAL INDENTURE
Exhibit 4.1
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of October 4,
2006, by and among Xxxx-XxXxx Corporation, a Delaware corporation (the “Company”), Anadarko
Petroleum Corporation (“Parent Guarantor”), a Delaware corporation and sole stockholder of the
Company, and Citibank, N.A., a national banking association incorporated and existing under the
laws of the United States of America, as trustee under the indenture referred to below (the
“Trustee”).
WITNESSETH:
WHEREAS, the Company and the Trustee are parties to that certain Indenture, dated as of August
1, 2001, as supplemented by that certain Supplemental Indenture, dated as of September 21, 2005,
between the Company and the Trustee (as so supplemented, the “Indenture”), providing for the
issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness in
one or more series (the “Securities”), up to such principal amounts as may be authorized in or
pursuant to one or more Board Resolutions;
WHEREAS, pursuant to Section 9.01 of the Indenture, the Company, when authorized by a Board
Resolution, and the Trustee are authorized to enter into a Supplemental Indenture (i) pursuant to
clause (c) thereof, to add to the covenants of the Company such further covenants, restrictions or
conditions for the protection of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities stating that such
covenants are expressly being included solely for the benefit of such series) as the Board of
Directors of the Company and the Trustee shall consider to be for the protection of the Holders of
such Securities or (ii) pursuant to clause (f) thereof, to make such other provisions in regard to
matters or questions arising under this Indenture which shall not adversely affect the interests of
any Holder; and
WHEREAS, there are Outstanding on the date hereof Securities of three series consisting of
$675,000,000 aggregate principal amount of the 6.875% Notes due September 15, 2011, $500,000,000
aggregate principal amount of the 7.875% Notes due September 15, 2031 and $650,000,000 aggregate
principal amount of the 6.950% Notes due July 1, 2024 (the “Outstanding Securities”); and
WHEREAS, as the result of (i) the termination of the registration under the Securities
Exchange Act of 1934 (the “Exchange Act”) of the common stock of the Company pursuant to the filing
of a Form 15 with the Commission on August 11, 2006 (which termination thereby eliminated the
reporting obligations of the Company pursuant to Section 13 of the Exchange Act); (ii) the filing
of a Form 15 with the Commission on October 4, 2006 (which filing thereby suspended the reporting
obligations of the Company pursuant to Section 15(d) of the Exchange Act with respect to the
Outstanding Securities); and (iii) the Commission not having to date adopted any rules or
regulations requiring the Company to file any supplementary information, documents or reports with
the Commission or the Trustee if the Company is not required to file information, documents or
reports pursuant to Section 13 or Section 15(d) of the Exchange Act, the Company is not required to
file any reports with the Trustee or the Commission pursuant to the Trust Indenture Act or Section
7.04 of the Indenture (the “Existing Reporting Provision”); and
WHEREAS, the Company proposes to amend the Indenture to provide that, so long (and only so
long) as the Company has no obligation to file any information, documents, or reports with the
Trustee or the Commission under the Trust Indenture Act or Existing Reporting Provision, the
Holders of all
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Securities issued under the Indenture have the benefit of a guarantee by Parent
Guarantor of the obligations of the Company under such Securities (the “Parent Guarantor
Provisions”); and
WHEREAS, the addition of the Parent Guarantor Provisions to the Indenture will affect the
interests of any Holder under the Indenture solely by adding to the covenants of the Company
thereunder further covenants of the Parent Guarantor for the protection of such Holders under the
Indenture; and
WHEREAS, in the Unanimous Written Consent of the Board of Directors of the Company (the
“Board”) dated October 4, 2006 (the “Consent”), the Board determined that (i) it considers the
addition of the Parent Guarantor Provisions to the Indenture to be for the protection of the
Holders of all Securities of all series under the Indenture and (ii) the Parent Guarantor
Provisions do not adversely affect the interests of any Holder under the Indenture; and
WHEREAS, as a result of such determinations by the Board, pursuant to Section 9.01(c) and (f)
of the Indenture, without the consent of any Holder of Notes, the Company and the Trustee may amend
or supplement the Indenture to add the Parent Guarantor Provisions to the Indenture; and
WHEREAS, the sole purpose and effect of this Supplemental Indenture is the addition of the
Parent Guarantor Provisions to the Indenture; and
WHEREAS, pursuant to Sections 9.01, 9.03, 9.05, 1.02 and 1.03 of the Indenture, the Company
has delivered a request to the Trustee requesting the Trustee to join with the Company in the
execution of this Supplemental Indenture, accompanied by (1) the Consent that contains resolutions
of the Board (x) authorizing the execution of this Supplemental Indenture and (y) approving this
Supplemental Indenture and (2) an Officers’ Certificate and Opinion of Counsel stating that in the
opinion of the signer(s) thereof, all conditions and covenants provided for in the Indenture
relating to the proposed action have been complied with; and
WHEREAS, the execution and delivery of this Supplemental Indenture has been duly authorized by
a Board Resolution and all acts, conditions and requirements necessary to make this Supplemental
Indenture a valid and binding agreement in accordance with its terms and for the purposes set forth
herein have been done and taken, and the execution and delivery of this Supplemental Indenture has
been in all respects duly authorized.
NOW, THEREFORE, intending to be legally bound hereby, each of the Company, Parent Guarantor
and the Trustee has executed and delivered this Supplemental Indenture.
ARTICLE ONE
AMENDMENT
Section 101. Additional Provision. The Indenture shall be amended to include the
following ARTICLE SIXTEEN to follow ARTICLE FIFTEEN, to read as follows:
ARTICLE SIXTEEN
PARENT GUARANTEE
Section 16.01. Parent Guarantee. So long (and only so long) as
the Company is Non-Reporting, Parent Guarantor hereby unconditionally guarantees
(such guarantee to be referred to herein as a “Parent Guarantee”) to each Holder of
Securities of each series
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authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, jointly and severally with each Guarantor of
the Securities of that series, if any, irrespective of the validity and
enforceability of this Indenture, such Securities or the
obligations of the Company hereunder or thereunder, (i) the due and punctual payment
of the principal of and any premium or interest on such Securities, whether at
maturity or on an interest payment date, by acceleration, pursuant to an offer to
purchase such Securities or otherwise, and interest on the overdue principal of and
interest, if any, on such Securities, if lawful, and all other obligations of the
Company to the Holders of such Securities or the Trustee hereunder or thereunder
shall be promptly paid in full, all in accordance with the terms hereof and thereof
including all amounts payable to the Trustee under Section 6.07 hereof, and (ii) in
case of any extension of time of payment or renewal of any such Securities or any of
such other obligations, the same shall be promptly paid in full when due or to be
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
If the Company fails to make any payment when due of any amount so guaranteed
for whatever reason, so long (and only so long) as the Company is Non-Reporting,
Parent Guarantor shall be obligated, jointly and severally with each such Guarantor
of the Securities of that series, if any, to pay the same immediately. Parent
Guarantor hereby agrees that, so long (and only so long) as the Company is
Non-Reporting, its obligations hereunder shall be continuing, absolute and
unconditional, irrespective of, and shall be unaffected by, the validity, regularity
or enforceability of the Securities, this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities or the
Trustee with respect to any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of Parent Guarantor. Parent Guarantor hereby waives diligence, presentment,
demand of payment, demand of performance, 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, notice and all demand
whatsoever and covenants that, so long (and only so long) as the Company is
Non-Reporting, its Parent Guarantee shall not be discharged except by complete
performance of the obligations contained in the Securities guaranteed by the Parent
Guarantee, in this Indenture and in this Article Sixteen. If any Holder of
Securities or the Trustee is required by any court or otherwise to return to the
Company or Parent Guarantor or any Guarantor of such Securities, or any custodian,
trustee, liquidator or other similar official acting in relation to the Company or
Parent Guarantor or any Guarantor of such Securities, any amount paid by the Company
or Parent Guarantor or any Guarantor of such Securities to the Trustee or such
Holder, this Article Sixteen, to the extent theretofore discharged with respect to
the Parent Guarantee, so long (and only so long) as the Company is Non-Reporting,
shall be reinstated in full force and effect. Parent Guarantor agrees that it shall
not be entitled to any right of subrogation in relation to the Holders of Securities
of a series guaranteed hereby by Parent Guarantor in respect of any obligations
guaranteed hereby by such Parent Guarantee until payment in full of all such
obligations. Parent Guarantor further agrees that, as between Parent Guarantor, on
the one hand, and the Holders of Securities and the Trustee on the other hand, (i)
the maturity of the obligations guaranteed hereby by such Parent Guarantee may be
accelerated as provided in Article Five hereof for the purposes of the Parent
Guarantee, notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby and (ii) so long (and
only so long) as the Company is Non-Reporting, in the event of any acceleration of
such
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obligations as provided in Article Five hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by such Parent
Guarantor, jointly and severally with any other Guarantor of such Securities, for
the purpose of this Article
Sixteen. In addition, without limiting the foregoing, upon the effectiveness of an
acceleration under Article Five, so long (and only so long) as the Company is
Non-Reporting, the Trustee may make a demand for payment on the Securities under the
Parent Guarantee thereof to the extent not discharged.
Parent Guarantor shall be subrogated to all rights of the Holder of any
Securities guaranteed hereby by the Parent Guarantee against the Company in respect
of any amounts paid to such Holder by Parent Guarantor pursuant to the provisions of
the Parent Guarantee; provided that Parent 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 interest on all such Securities shall have
been paid in full.
The Parent Guarantee provided in this Section 16.01 shall not be valid or
become obligatory for any purpose with respect to a Security unless the certificate
of authentication on such Security shall have been signed by the Trustee or any duly
appointed agent.
Section 16.02. Obligations of the Parent Guarantor Unconditional.
Nothing contained in this Article Sixteen or elsewhere in this Indenture or in any
Security is intended to or shall impair, as between Parent Guarantor and the Holders
of the Securities guaranteed by Parent Guarantor’s Parent Guarantee, the obligations
of Parent Guarantor, so long (and only so long) as the Company is Non-Reporting,
which are otherwise absolute and unconditional, to pay to such Holders the principal
of and interest on such Securities as and when the same shall become due and payable
in accordance with the provisions of Parent Guarantee or is intended to or shall
affect the relative rights of such Holders and creditors of Parent Guarantor, nor
shall anything herein or therein prevent the Trustee or any such Holder from
exercising all remedies otherwise permitted by applicable law upon Default under
this Indenture in respect of cash, property or securities of Parent Guarantor
received upon the exercise of any such remedy.
Upon any distribution of assets of Parent Guarantor referred to in this Article
Sixteen, the Trustee, subject to the provisions of Sections 6.01 and 6.03, and the
Holders of the Securities guaranteed hereby by Parent Guarantor shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in which
such dissolution, winding up, liquidation or reorganization proceedings are pending,
or a certificate of the liquidating trustee or agent or other person making any
distribution to the Trustee or to such Holders, for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of other
indebtedness of Parent Guarantor, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article Sixteen.
Section 16.03. Article Sixteen Not To Prevent Events of Default. The
payment of principal or interest on the Securities of any series by reason of any
provision in this Article Sixteen shall not be construed as preventing the
occurrence of an Event of Default.
Section 16.04. No Parent Guarantee Notation. Parent Guarantor hereby
agrees that its Parent Guarantee shall be evidenced by each Security authenticated
and delivered
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by the Trustee under this Indenture (whether before or after the date
this Article Sixteen became effective) and shall remain in full force and effect
notwithstanding that the Parent Guarantee shall not be notated separately on any
Security.
Section 16.05. Definitions.
“Non-Reporting” means, with respect to the Company, not being required to file
any information, documents or reports with the Commission or the Trustee pursuant to
the Trust Indenture Act or Section 7.04 hereof.
“Parent Guarantor” means Anadarko Petroleum Corporation, a Delaware
corporation, until a successor corporation shall have become such pursuant to
Section 16.06 of this Indenture, and thereafter “Parent Guarantor” shall mean such
successor corporation.
Section 16.06. When Parent Guarantor May Consolidate or Merge. Parent
Guarantor will not consolidate with or merge with or into any Person unless:
(A) the resulting, surviving or transferee Person (if not Parent Guarantor, a
Guarantor or the Company) shall be a Person organized and existing under the laws of
the jurisdiction under which Parent Guarantor was organized or under the laws of the
United States of America, or any State thereof or the District of Columbia, and such
Person shall expressly assume all the obligations of Parent Guarantor under its
Parent Guarantee hereunder;
(B) immediately after giving effect to such transaction or transactions, no
default in the performance (i) by the Company of the covenants and conditions of
this Indenture to be performed by the Company or (ii) by Parent Guarantor (including
the resulting, surviving or transferee Person in such transaction or transactions)
of the covenants and conditions of this Indenture to be performed by Parent
Guarantor, shall have occurred and be continuing; and
(C) the Company delivers to the Trustee an Officers’ Certificate and an Opinion
of Counsel, each stating that such consolidation or merger, and, if applicable, the
assumption by the resulting or surviving Person of Parent Guarantor’s obligations
under its Parent Guarantee hereunder, complies with the Indenture.
If the conditions set forth in (A), (B) and (C) above are otherwise satisfied,
the consolidation or merger of Parent Guarantor with or into any Person shall not be
or be deemed to be a violation, default or breach by Parent Guarantor of any of the
provisions of Article Sixteen hereof.
Section 16.07. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of principal of or interest on any Security or for any
claim based on any Security or this Indenture shall be had against any director or
officer or stockholder, past, present or future, of Parent Guarantor. Any such
claim against any such Person is expressly waived as a condition of, and as
consideration for, the Parent Guarantee and the provisions hereof.
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ARTICLE TWO
MISCELLANEOUS PROVISIONS
Section 201. Ratification of Indenture; Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture and the Securities issued thereunder are in
all respects ratified and confirmed and all the terms, conditions and provisions thereof shall
remain in full force and effect. This Supplemental Indenture is executed as and shall constitute
an indenture supplemental to the Indenture and shall be construed in connection with and form a
part of the Indenture for all purposes, and every Holder of Securities heretofore or hereafter
authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty
as to the validity or sufficiency of this Supplemental Indenture.
Section 202. Acceptance by Trustee. The Trustee accepts the amendment of the
Indenture effected by this Supplemental Indenture and agrees to perform the Indenture as
supplemented hereby, but only upon the terms and conditions set forth in the Indenture.
Section 203. Capitalized Terms. Capitalized terms used herein and not otherwise defined
herein are used with the respective meanings ascribed to such terms in the Indenture. The words
“herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental
Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
Section 204. Provisions Binding on Company’s Successors. All of the covenants,
stipulations, promises and agreements made in this Supplemental Indenture by the Company shall bind
its successors and assigns whether so expressed or not. All of the covenants, stipulations,
promises and agreements made in this Supplemental Indenture by Parent Guarantor shall bind its
successors and assigns whether so expressed or not. All of the covenants, stipulations, promises
and agreements made in this Supplemental Indenture by the Trustee shall bind its successors and
assigns whether so expressed or not.
Section 205. Effect of Headings. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
Section 206. Governing Law. This Supplemental Indenture shall be deemed to be a contract
made under the law of the State of New York and for all purposes shall be construed in accordance
with the law of said State.
Section 207. Counterparts. This 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. This Supplemental
Indenture shall become effective and constitute a binding agreement between the parties hereto when
counterparts hereof shall have been executed and delivered by each of the parties hereto.
Section 208. Separability Clause. In case any provision in this Supplemental Indenture
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 209. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies
or conflicts with the duties imposed by any of Section 310 through 317, inclusive, of the Trust
Indenture Act through the operation of Section 318(c) thereof, such imposed duties shall control.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Second Supplemental Indenture as of
the date first above written.
| XXXX-XXXXX CORPORATION | ||||||||
| By: | /s/ Xxxxxx X. Xxxx | |||||||
| Name: | Xxxxxx X. Xxxx | |||||||
| Title: | Vice President and Treasurer | |||||||
Attest: |
||||||||
/s/ Xxxxxx X. Xxxxxxxx |
||||||||
Name: |
Xxxxxx X. Xxxxxxxx | |||||||
Title: |
Assistant Secretary | |||||||
| ANADARKO PETROLEUM CORPORATION | ||||||||
| By: | /s/ Xxxxxx X. Xxxx | |||||||
| Name: | Xxxxxx X. Xxxx | |||||||
| Title: | Vice President, Finance and Treasurer | |||||||
Attest: |
||||||||
/s/ Xxxxxx X. Xxxxxxxx |
||||||||
Name: |
Xxxxxx X. Xxxxxxxx | |||||||
Title: |
Assistant Secretary | |||||||
| CITIBANK, N.A., as Trustee | ||||||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||||||
| Name: | Xxxxxx X. Xxxxxxxx | |||||||
| Title: | Vice President | |||||||
Attest: |
||||||||
/s/ Xxxxx Xxxxxxxxxx |
||||||||
Name: |
Xxxxx Xxxxxxxxxx | |||||||
Title: |
Vice President | |||||||
Signature Page to Second Supplemental Indenture
