AS FILED WITH SECURITIES AND EXCHANGE COMMISSION ON , 2001
NOVA SCOTIA, CANADA 1311 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
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ANADARKO PETROLEUM CORPORATION
DELAWARE 1311 76-0146568
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
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If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration number of the earlier effective registration statement for the same offering. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED(1) PER UNIT OFFERING PRICE FEE(1)
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6 3/4% Series B Senior Notes due 2011........ $950,000,000 100% $950,000,000 $237,500
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7 1/2% Series B Senior Notes due 2031........ $900,000,000 100% $900,000,000 $225,000
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Guarantees of the 6 3/4% Series B Senior -- -- -- --
Notes(2)...................................
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Guarantees of the 7 1/2% Series B Senior -- -- -- --
Notes(2)...................................
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Total............................... $1,850,000,000 100% $1,850,000,000 $462,500
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(1) Determined in accordance with Rule 457(f) promulgated under the Securities Act of 1933, as amended.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT A SOLICITATION OF AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
THE INFORMATION IN THIS PROSPECTUS WILL BE AMENDED OR COMPLETED; DATED
, 2001
PROSPECTUS
ANADARKO FINANCE COMPANY
(UNCONDITIONALLY GUARANTEED BY ANADARKO PETROLEUM CORPORATION)
EXCHANGE OFFER FOR:
All our 6 3/4% Series A Senior Notes due 2011 for our 6 3/4% Series B Senior Notes due 2011 and
All our 7 1/2% Series A Senior Notes due 2031 for our 7 1/2% Series B Senior Notes due 2031
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON , 2001, UNLESS EXTENDED.
Terms of the exchange offer:
- We are offering a total of $950 million of our 6 3/4% Series B Senior Notes due 2011 for an equal amount of our outstanding 6 3/4% Series A Senior Notes due 2011 and a total of $900 million of our 7 1/2% Series B Senior Notes due 2031 for an equal amount of our outstanding 7 1/2% Series A Senior Notes due 2031. The old notes are, and the new notes will be, guaranteed by our parent, Anadarko Petroleum Corporation.
- We will exchange new notes for all outstanding old notes that are validly tendered and not withdrawn prior to the expiration of the exchange offer. You may withdraw tenders of old notes at any time prior to the expiration of the exchange offer.
- The exchange of old notes for new notes will not be a taxable transaction for U.S. federal income tax purposes but you should see the discussion under the caption "United States Federal and Canadian Income Tax Considerations" on page 31 for more information.
- We will not receive any cash proceeds from the exchange offer.
- The terms of the new notes are substantially identical to those of the outstanding old notes, except that the transfer restrictions and registration rights relating to the old notes do not apply to the new notes.
- The exchange offer is the initial public offering of the new notes.
The date of this prospectus is , 2001
TABLE OF CONTENTS
SUMMARY.................................. 1 RISK FACTORS............................. 8 FORWARD-LOOKING STATEMENTS............... 10 USE OF PROCEEDS.......................... 11 CAPITALIZATION........................... 11 RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS.............. 12 THE EXCHANGE OFFER....................... 12 DESCRIPTION OF NOTES..................... 21 UNITED STATES FEDERAL AND CANADIAN INCOME TAX CONSIDERATIONS..................... 31 CERTAIN ERISA CONSIDERATIONS............. 36 PLAN OF DISTRIBUTION..................... 38 LEGAL AND TAX MATTERS.................... 38 EXPERTS.................................. 39 |
You should rely on the information contained in this document or to which we have referred you. We have not authorized anyone to provide you with information that is different. This document may only be used where it is legal to sell these securities. The information in this document may only be accurate on the date of this document.
WHERE YOU CAN FIND MORE INFORMATION ABOUT
ANADARKO PETROLEUM CORPORATION
Anadarko Petroleum Corporation, the guarantor of the notes, files annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document Anadarko files at the SEC's public reference rooms in Washington, D.C., New York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. Anadarko's SEC filings are also available to the public at the SEC's web site at http://www.sec.gov.
Anadarko Finance Company, the issuer of the notes, is not a reporting company and does not make separate filings with the SEC.
We and Anadarko Petroleum Corporation have filed with the SEC a Registration Statement on Form S-4, of which this prospectus forms a part, under the Securities Act, in connection with our offering of the new notes. This prospectus does not contain all of the information in the registration statement. You will find additional information about us, our parent and the new notes in the registration statement. Any statements made in this prospectus concerning the provisions of legal documents are not necessarily complete and you should read the documents that are filed as exhibits to the registration statement.
INCORPORATION OF DOCUMENTS BY REFERENCE
This prospectus "incorporates by reference" certain information that Anadarko Petroleum Corporation has filed with the SEC under the Securities Exchange Act of 1934. This means that we are disclosing important information to you by referring you to those documents. Information filed with the SEC after the date of this prospectus, and prior to the termination of the offering of the securities offered hereby, will update and supersede this information. Anadarko incorporates by reference the documents listed below and any future filings made with the SEC under Section 13(a), 13(c), 14, or 14(d) of the Securities Exchange Act of 1934 until this offering is completed:
(a) Annual Report on Form 10-K for the year ended December 31, 2000, as amended by Form 10-K/A filed on June 27, 2001;
(b) Quarterly Report on Form 10-Q for the three months ended March 31, 2001; and
(c) Current Reports on Form 8-K, dated July 14, 2000 (containing the historical financial statements of Union Pacific Resources Corporation), February 1, 2001, February 12, 2001, March 8, 2001, April 19, 2001 and June 25, 2001.
You may request a copy of these filings, at no cost, by writing to or telephoning Anadarko at its principal executive offices as follows:
Corporate Secretary Anadarko Petroleum Corporation 17001 Northchase Drive Houston, Texas 77060 (281) 875-1101
You should rely only on the information incorporated by reference or provided in this prospectus. We and Anadarko have authorized no one to provide you with different information. We and Anadarko are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus is accurate as of any date other than the date on the front of this document.
PROSPECTUS SUMMARY
The following summary highlights selected information from the prospectus and may not contain all of the information that is important to you. This prospectus includes specific terms of the new notes, as well as information regarding our business and detailed financial data. We encourage you to read this entire prospectus carefully, including the discussion of risk and uncertainties affecting our business included under the caption "Risk Factors," and the documents to which we refer you. In this prospectus, when we use the terms "we" or "our," we mean Anadarko Finance Company, and when we use the term "Anadarko," we mean Anadarko Petroleum Corporation and its subsidiaries on a consolidated basis, unless the context means otherwise.
ANADARKO FINANCE COMPANY AND ANADARKO PETROLEUM CORPORATION
Company Overview. We are an indirect subsidiary of Anadarko Petroleum Corporation, organized as an unlimited liability company under the laws of the province of Nova Scotia, Canada. We have no material assets or operations.
Our corporate offices are at 17001 Northchase Drive, Houston, Texas 77060-2141, and our telephone number is (281) 875-1101.
Parent Overview. Anadarko Petroleum Corporation is one of the world's largest independent oil and gas exploration and production companies, with two billion barrels of oil equivalent (BOE) of proved reserves. Anadarko's major areas of operations are located in the United States, primarily in Texas, Louisiana, the Mid-Continent and Rocky Mountain regions, Alaska and in the shallow and deep waters of the Gulf of Mexico, as well as in Canada, Algeria, Guatemala, Venezuela and other international areas. Exploration activity is underway in Tunisia, West Africa, the former Soviet Republic of Georgia, Australia and the North Atlantic Margin. Anadarko also owns and operates gas gathering systems in its core producing areas. In addition, Anadarko engages in the hard minerals business through non-operated joint venture and royalty arrangements in several coal, industrial minerals and trona (natural soda ash) mines located on lands within and adjacent to its Land Grant holdings in Wyoming.
On July 14, 2000, a subsidiary of Anadarko merged with and into Union Pacific Resources Group Inc. (UPR). As a result, UPR became a wholly owned subsidiary of Anadarko, and stockholders of UPR received Anadarko common shares in exchange for UPR common shares. The merger was treated as a tax-free reorganization and accounted for as a purchase business combination.
In March 2001, Anadarko acquired Canadian-based Berkley Petroleum Corp. for C$11.40 per share in cash, for an aggregate equity value of US$779 million plus the assumption of debt of approximately US$236 million. The transaction was recorded using purchase accounting.
The foregoing information about Anadarko and its business is only a general summary and is not intended to be comprehensive. For additional information about Anadarko and its business, you should refer to the information described under the caption "Where You Can Find More Information About Anadarko Petroleum Corporation."
Anadarko's corporate offices are at 17001 Northchase Drive, Houston, Texas 77060-2141, and its telephone number is (281)875-1101.
RECENT DEVELOPMENTS
On June 25, 2001, Anadarko announced it had entered into an agreement to acquire Canadian-based Gulfstream Resources Canada Limited for C$2.65 per share in cash. The total value of the acquisition is approximately US$137 million, subject to normal closing adjustments.
THE EXCHANGE OFFER
Old Notes........................... On April 26, 2001 and May 23, 2001, we
issued $400 million and $550 million,
respectively, aggregate principal
amount of 6 3/4% Series A Senior Notes
due 2011. On April 26, 2001, we issued
$900 million aggregate principal amount
of 7 1/2% Series A Senior Notes due
2031.
New Notes........................... 6 3/4% Series B Senior Notes due 2011
and 7 1/2% Series B Senior Notes due
2031. The terms of each series of the
new notes are substantially identical
to those terms of each respective
series of outstanding old notes, except
that the transfer restrictions and
registration rights relating to the old
notes do not apply to the new notes.
Exchange Offer...................... We are offering to exchange
- up to $950 million principal amount
of our 6 3/4% Series B Senior Notes
due 2011 which have been registered
under the Securities Act for an equal
amount of our outstanding 6 3/4%
Series A Senior Notes due 2011, and
- up to $900 million principal amount
of our 7 1/2% Series B Senior Notes
due 2031 which have been registered
under the Securities Act for an equal
amount of our outstanding 7 1/2%
Series A Senior Notes due 2031
to satisfy our obligations under the
registration rights agreements that we
entered into when we issued the old
notes in transactions exempt from
registration under the Securities Act.
Expiration Date; Tenders............ The exchange offer will expire at 5:00
p.m., New York City time, on
, 2001, unless extended. By
tendering your old notes, you represent
to us that:
- you are not our "affiliate" as
defined in Rule 405 under the
Securities Act;
- any new notes you receive in the
exchange offer are being acquired by
you in the ordinary course of your
business;
- at the time of commencement of the
exchange offer, neither you nor, to
your knowledge, anyone receiving new
notes from you, has any arrangement
or understanding with any person to
participate in the distribution of
the new notes, as defined in the
Securities Act, in violation of the
Securities Act;
- if you are not a participating
broker-dealer, you are not engaged
in, and do not intend to engage in,
the distribution of the new notes, as
defined in the Securities Act; and
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- if you are a broker-dealer, you will
receive the new notes for your own
account in exchange for old notes
that were acquired by you as a result
of your market-making or other
trading activities and that you will
deliver a prospectus in connection
with any resale of the new notes you
receive. For further information
regarding resales of the new notes by
participating broker-dealers, see the
discussion below under the caption
"Plan of Distribution."
Withdrawal; Non-Acceptance.......... You may withdraw any old notes tendered
in the exchange offer at any time prior
to 5:00 p.m., New York City time, on
, 2001. If we decide for any
reason not to accept any old notes
tendered for exchange, the old notes
will be returned to the registered
holder at our expense promptly after
the expiration or termination of the
exchange offer. In the case of old
notes tendered by book-entry transfer
into the exchange agent's account at
The Depository Trust Company, any
withdrawn or unaccepted old notes will
be credited to the tendering holder's
account at The Depository Trust
Company. For further information
regarding the withdrawal of tendered
old notes, see "The Exchange
Offer -- Terms of the Exchange Offer;
Period for Tendering Old Notes" and
"-- Withdrawal Rights."
Conditions to the Exchange Offer.... The exchange offer is subject to
customary conditions, which we may
waive. See the discussion below under
the caption "The Exchange
Offer -- Conditions to the Exchange
Offer" for more information regarding
the conditions to the exchange offer.
Procedures for Tendering Old
Notes............................... Unless you comply with the procedures
described below under the caption "The
Exchange Offer -- Guaranteed Delivery
Procedures," you must do one of the
following on or prior to the expiration
of the exchange offer to participate in
the exchange offer:
- tender your old notes by sending the
certificates for your old notes, in
proper form for transfer, a properly
completed and duly executed letter of
transmittal, with any required
signature guarantees, and all other
documents required by the letter of
transmittal, to The Bank of New York,
as exchange agent, at one of the
addresses listed below under the
caption "The Exchange
Offer -- Exchange Agent"; or
- tender your old notes by using the
book-entry transfer procedures
described below and transmitting a
properly completed and duly executed
letter of transmittal, with any
required signature guarantees, or an
agent's message instead of the letter
of transmittal, to the exchange
agent. In order for a
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book-entry transfer to constitute a
valid tender of your old notes in the
exchange offer, The Bank of New York,
as exchange agent, must receive a
confirmation of book-entry transfer
of your old notes into the exchange
agent's account at The Depository
Trust Company prior to the expiration
of the exchange offer. For more
information regarding the use of
book-entry transfer procedures,
including a description of the
required agent's message, see the
discussion below under the caption
"The Exchange Offer -- Book-Entry
Transfer."
Guaranteed Delivery Procedures...... If you are a registered holder of the
old notes and wish to tender your old
notes in the exchange offer, but
- the old notes are not immediately
available,
- time will not permit your old notes
or other required documents to reach
the exchange agent before the
expiration of the exchange offer, or
- the procedure for book-entry transfer
cannot be completed prior to the
expiration of the exchange offer,
then you may tender old notes by
following the procedures described
below under the caption "The Exchange
Offer -- Guaranteed Delivery
Procedures."
Special Procedures for Beneficial
Owners.............................. If you are a beneficial owner whose old
notes are registered in the name of a
broker, dealer, commercial bank, trust
company or other nominee and you wish
to tender your old notes in the
exchange offer, you should promptly
contact the person in whose name the
old notes are registered and instruct
that person to tender on your behalf.
If you wish to tender in the exchange
offer on your own behalf, prior to
completing and executing the letter of
transmittal and delivering your old
notes, you must either make appropriate
arrangements to register ownership of
the old notes in your name or obtain a
properly completed bond power from the
person in whose name the old notes are
registered.
United States Federal Income Tax and
Canadian Income Tax
Considerations.................... The exchange of old notes for new notes
in the exchange offer will not be a
taxable transaction for United States
federal income tax or Canadian income
tax purposes. See the discussion below
under the caption "United States
Federal and Canadian Income Tax
Considerations" for more information
regarding the tax consequences to you
of the exchange offer.
Use of Proceeds..................... We will not receive any cash proceeds
from the exchange offer.
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Exchange Agent...................... The Bank of New York is the exchange
agent for the exchange offer. You can
find the addresses and telephone number
of the exchange agent below under the
caption "The Exchange Offer -- Exchange
Agent."
Resales............................. Based on interpretations by the staff
of the Securities and Exchange
Commission, as set forth in no-action
letters issued to third parties, we
believe that the new notes you receive
in the exchange offer may be offered
for resale, resold or otherwise
transferred without compliance with the
registration and prospectus delivery
provisions of the Securities Act.
However, you will not be able to freely
transfer the new notes if:
- you are our "affiliate," as defined
in Rule 405 under the Securities Act;
- you are not acquiring the new notes
in the exchange offer in the ordinary
course of your business;
- you have an arrangement or
understanding with any person to
participate in the distribution, as
defined in the Securities Act, of the
new notes you will receive in the
exchange offer; or
- you are a participating broker-dealer
that receives new notes for its own
account in the exchange offer for old
notes that were acquired as a result
of market-making or other trading
activities.
If you fall within one of the
exceptions listed above, you must
comply with the registration and
prospectus delivery requirements of the
Securities Act in connection with any
resale transaction involving the new
notes.
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CONSEQUENCES OF NOT EXCHANGING YOUR OLD NOTES
If you do not exchange your old notes in the exchange offer, your old notes will continue to be subject to the restrictions on transfer described in the legend on the certificate for your old notes. In general, you may offer or sell your old notes only:
- if the sale is registered under the Securities Act and applicable state securities laws;
- if they are offered or sold under an exemption from registration under the Securities act and applicable state securities laws; or
- if they are offered or sold in a transaction not subject to the Securities Act and applicable state securities laws.
We do not currently intend to register any sale of the old notes under the Securities Act. Under some circumstances, however, holders of the old notes, including holders who are not permitted to participate in the exchange offer or who may not freely resell new notes received in the exchange offer, may require us to file, and cause to become effective, a shelf registration statement covering resales of old notes by these holders. For more information regarding the consequences of not tendering your old notes and our obligation to file a shelf registration statement, see "The Exchange Offer -- Consequences of Exchanging
or Failing to Exchange Old Notes" and "Description of Notes -- Registration Rights; Liquidated Damages."
SUMMARY DESCRIPTION OF THE NEW NOTES
The terms of the new notes and those of the outstanding old notes are substantially identical, except that the transfer restrictions and registration rights relating to the old notes do not apply to the new notes. In addition, if
- this registration statement is not declared effective prior to October 23, 2001 or if the exchange offer is not completed by the 30th day from that date,
- we are obligated to file a shelf registration statement and we and Anadarko fail to do so prior to the 45th day after the obligation arises or the shelf registration statement is not declared effective prior to the 60th day after the obligation arises, or
- either the registration statement or the shelf registration statement ceases to be effective or usable,
we and Anadarko agree to pay liquidated damages of $0.05 per week per $1,000 in principal amount of notes for each 90 day period until all defaults have been cured, up to a maximum of $0.25 per week per $1,000 in principal amount of notes.
Issuer.............................. Anadarko Finance Company
Securities Offered.................. $950 million aggregated principal
amount of 6 3/4% Series B Senior Notes
due 2011; and
$900 million aggregated principal
amount of 7 1/2% Series B Senior Notes
due 2031.
Maturity Dates...................... May 1, 2011 for the 6 3/4% Series B
Senior Notes due 2011; and
May 1, 2031 for the 7 1/2% Series B
Senior Notes due 2031.
Interest............................ Interest on the two series of new notes
will accrue at the rate of 6 3/4% and
7 1/2%, respectively, per annum and
will be payable semiannually in cash on
May 1 and November 1, of each year,
commencing on November 1, 2001.
Parent Guarantees................... Anadarko Petroleum Corporation will
fully and unconditionally guarantee the
new notes. If we cannot make payments
on the new notes when they are due,
Anadarko must make them instead. See
"Description of Notes -- Brief
Description of the Notes and The Parent
Guarantees."
Ranking............................. The new notes and the parent guarantees
will be unsecured and unsubordinated
obligations of us and Anadarko,
respectively, and will rank equal in
right of payment to all of our and
Anadarko's existing and future
unsecured and unsubordinated
indebtedness. As of March 31, 2001,
Anadarko, the guarantor of the notes,
had approximately $2.0 billion of
indebtedness outstanding and $4.9
billion of indebtedness outstanding on
a consolidated basis. The parent
guarantees will be effectively
subordinated to all
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existing and future obligations of
Anadarko's subsidiaries. As of March
31, 2001, Anadarko's subsidiaries had
$2.9 billion of indebtedness
outstanding.
Sinking Fund........................ None.
Optional Redemption................. We may redeem any of the new notes, at
our option, at any time in whole or
from time to time in part. The
redemption price is 100% of their
principal amount, plus accrued and
unpaid interest and the make-whole
premium. See the discussion below under
the caption "Description of
Notes -- Redemption" for more
information on the make-whole premium.
Assignment of Our Obligations at Our
Option.............................. We may assign our obligations under the
notes to any other subsidiary of
Anadarko at any time as long as the
assignee agrees to be bound by the
terms of the indenture, and the parent
guarantees remain in place. See
"Description of Notes -- Consolidation,
Merger and Sale of Assets; Assignment
of Obligations."
Events of Default................... If there is an event of default on
either series of notes, the principal
amount of such series of notes plus
accrued interest, if any, may be
declared immediately due and payable.
These amounts automatically become due
and payable in specified circumstances.
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See "Description of Notes -- Events of Default and Remedies."
RISK FACTORS
You should carefully consider all of the information contained in this prospectus before deciding to tender your old notes in the exchange offer. In particular, you should carefully review the specific factors described below under the caption "Risk Factors," which contain important information about us and the risk that may affect our business and your investment in our notes.
RISK FACTORS
You should consider carefully the following factors, as well as the other information set forth or incorporated by reference in the prospectus (including the risks and other disclosure that are presented in Anadarko's Annual Report on Form 10-K for the year ended December 31, 2000), before tendering your old notes in the exchange offer. When we use the term "notes" in this prospectus, the term includes the old notes and the new notes.
HOLDERS WHO FAIL TO EXCHANGE THEIR OLD NOTES WILL CONTINUE TO BE SUBJECT TO
RESTRICTIONS ON TRANSFER.
If you do not exchange your old notes for new notes in the exchange offer, you will continue to be subject to the restrictions on transfer of your old notes described in the legend on the certificates for your old notes. The restrictions on transfer of your old notes arise because we issued the old notes under exemptions from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state securities laws. In general, you may only offer or sell the old notes if they are registered under the Securities Act and applicable state securities laws, or offered and sold under an exemption from these requirements. We do not plan to register any sale of the old notes under the Securities Act. For further information regarding the consequences of tendering your old notes in the exchange offer, see the discussions below under the captions "The Exchange Offer -- Consequences of Exchanging or Failing to Exchange Old Notes" and "United States Federal and Canadian Income Tax Consequences."
We believe that new notes issued in exchange for old notes pursuant to the exchange offer may be offered for resale, resold or otherwise transferred by you without registering the new notes under the Securities Act or delivering a prospectus so long as you (1) are not one of our "affiliates," which is defined in Rule 405 of the Securities Act and (2) acquire the new notes in the ordinary course of your business and, unless you are a broker dealer, you do not have any arrangement or understanding with any person to participate in the distribution of the new notes. Our belief is based on interpretations by the SEC's staff in no-action letters issued to third parties. Please note that the SEC has not considered our exchange offer in the context of a no-action letter, and the SEC's staff may not make a similar determination with respect to our exchange offer.
Unless you are a broker-dealer, you must acknowledge that you are not engaged in, and do not intend to engage in, a distribution of the new notes and that you have no arrangement or understanding to participate in a distribution of the new notes. If you are one of our affiliates, or you are engaged in, intend to engage in or have any arrangement or understanding with respect to, the distribution of new notes acquired in the exchange offer, you (1) should not rely on our interpretations of the position of the SEC's staff and (2) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction.
If you are a broker-dealer and receive new notes for your own account pursuant to the exchange offer, you must acknowledge that you will deliver a prospectus in connection with any resale of the new notes. The letter of transmittal states that by so acknowledging and by delivering a prospectus, you will not be deemed to admit that you are an "underwriter" within the meaning of the Securities Act. If you are a broker-dealer, you may use this prospectus, as it may be amended or supplemented from time to time, in connection with the resale of new notes received in exchange for old notes acquired by you as a result of market-making or other trading activities. For a period of 180 days after the expiration or termination of the exchange offer, we will make this prospectus available to any broker-dealer for use in connection with any resale. See "Plan of Distribution."
In addition, you may offer or sell the new notes in certain jurisdictions only if they have been registered or qualified for sale there, or an exemption from registration or qualification is available and is complied with. Subject to the limitations specified in the registration rights agreements relating to the old notes, we will register or qualify the new notes for offer or sale under the securities laws of any jurisdictions that you reasonably request in writing. Unless you request that the sale of the new notes be registered or qualified in a jurisdiction, we currently do not intend to register or qualify the sale of the new notes in any jurisdiction.
YOU MAY FIND IT DIFFICULT TO SELL YOUR NOTES.
There is no established trading market for the new notes or the old notes. Although Credit Suisse First Boston Corporation, the initial purchaser in the offering of the old notes, has informed us that it currently intends to make a market in the new notes, it has no obligation to do so and may discontinue making a market at any time without notice. We do not intend to apply for listing of the new notes on any national securities exchange or for quotation through The Nasdaq National Market. The liquidity of any market for the new notes will depend upon the number of holders of the new notes, our performance, the market for similar securities, the interest of securities dealers in making a market in the new notes and other factors relating to us. A liquid trading market may not develop for the new notes. In addition, to the extent old notes are tendered and accepted in the exchange offer, the trading market, if any, for the old notes would be adversely affected.
YOU MUST COMPLY WITH THE EXCHANGE OFFER PROCEDURES IN ORDER TO RECEIVE NEW,
FREELY TRADABLE NOTES.
Subject to the conditions set forth under "The Exchange Offer -- Conditions to the Exchange Offer," delivery of new notes in exchange for old notes tendered and accepted for exchange pursuant to the exchange offer will be made only after timely receipt by the exchange agent of the following:
- certificates for old notes or a book-entry confirmation of a book-entry transfer of old notes into the exchange agent's account at The Depository Trust Company, New York, New York as depository, including an agent's message (as defined) if the tendering holder does not deliver a letter of transmittal,
- a completed and signed letter of transmittal (or facsimile thereof), with any required signature guarantees, or, in the case of a book-entry transfer, an agent's message in lieu of the letter of transmittal, and
- any other documents required by the letter of transmittal.
Therefore, holders of old notes who would like to tender old notes in exchange for new notes should be sure to allow enough time for the old notes to be delivered on time. We are not required to notify you of defects or irregularities in tenders of old notes for exchange. Old notes that are not tendered or that are tendered but we do not accept for exchange will, following consummation of the exchange offer, continue to be subject to the existing transfer restrictions under the Securities Act and, upon consummation of the exchange offer, certain registration and other rights under the registration rights agreement will terminate. See "The Exchange Offer -- Procedures for Tendering Old Notes and "The Exchange Offer -- Consequences of Exchanging or Failing to Exchange Old Notes."
SOME HOLDERS WHO EXCHANGE THEIR OLD NOTES MAY BE DEEMED TO BE UNDERWRITERS.
If you exchange your old notes in the exchange offer for the purpose of participating in a distribution of the new notes, you may be deemed to have received restricted securities and, if so, will be required to comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction.
ANADARKO'S OTHER SUBSIDIARIES DO NOT GUARANTEE REPAYMENT OF THE NOTES.
Anadarko's ability to fulfill its obligations under its parent guarantee to make required principal and interest payments on the notes depends on the earnings of its subsidiaries and on its ability to receive dividends or other payments from its subsidiaries. The notes are our obligations only, and the parent guarantees of the notes are Anadarko's obligations only. Anadarko's other subsidiaries are not obligated or required to pay any amounts due pursuant to the notes or to make dividends or advances to Anadarko or us.
THE PARENT GUARANTEES OF THE NOTES ARE EFFECTIVELY SUBORDINATED TO
INDEBTEDNESS OF ANADARKO'S SUBSIDIARIES.
Anadarko's operations are and will be conducted by subsidiaries. Similarly, substantially all of Anadarko's assets are and will be owned by its subsidiaries. Accordingly, the parent guarantees of the notes are and will be effectively subordinated to all existing and future obligations and other liabilities (including trade payables) of Anadarko's subsidiaries. Any right Anadarko has to the assets of each of its subsidiaries upon the liquidation, reorganization or insolvency of such subsidiaries (and consequently your right as a holder of notes to participate in those assets) will be effectively subordinated to the claims of the creditors (including trade creditors) and preferred stockholders, if any, of its subsidiaries, except to the extent Anadarko has a claim against its subsidiaries as a creditor of its subsidiaries. As of March 31, 2001, Anadarko's subsidiaries had $2.9 billion of outstanding indebtedness.
Indebtedness of Anadarko's subsidiaries and obligations of its subsidiaries to trade creditors is structurally senior to the parent guarantee of the notes since, in the event of Anadarko's bankruptcy, liquidation, dissolution, reorganization or other winding up, the assets of its subsidiaries will be available to pay the parent guarantees of the notes only after its subsidiaries' indebtedness and obligations to trade creditors are paid in full. Because Anadarko stands as an equity holder, rather than a creditor, of its subsidiaries, creditors of its subsidiaries will have their debt satisfied out of the subsidiaries' assets before Anadarko's creditors, including the note holders. If any claims Anadarko may have as a creditor of a subsidiary are recognized, these claims would be subject to any security interest in the assets of the subsidiary and subordinate to any indebtedness of the subsidiary senior to that held by Anadarko.
FORWARD-LOOKING STATEMENTS
We and Anadarko have made in this prospectus and in the reports and documents incorporated herein by reference, and may from time to time otherwise make in other public filings, press releases and discussions with our management, forward-looking statements within the meaning of Sections 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 concerning our respective operations, economic performance and financial condition. These forward-looking statements include information concerning future production and reserves, schedules, plans, timing of development, contributions from oil and gas properties, and statements preceded by, followed by or that otherwise include the words "believes," "expects," "anticipates," "intends," "estimates," "projects," "target," "goal," "plans," "objective," "should" or similar expressions or variations on such expressions. For such statements, we and Anadarko claim the protection of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995. Such statements are subject to various risks and uncertainties, and actual results could differ materially from those expressed or implied by such statements due to a number of factors in addition to those discussed in Anadarko's Annual Report on Form 10-K for the year ended December 31, 2000 under the heading "Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations -- Additional Factors Affecting Business" and in our or Anadarko's other public filings, press releases and discussions with our or Anadarko's management. Neither we nor Anadarko undertake any obligation to publicly update or revise any forward-looking statements.
You are advised to consult any additional disclosures Anadarko makes in its Quarterly Reports on Form 10-Q, Annual Report on Form 10-K and current Reports on Form 8-K filed with the Securities and Exchange Commission. See "Where You Can Find More Information About Anadarko Petroleum Corporation." Other factors besides those listed here could also adversely affect us or Anadarko.
USE OF PROCEEDS
We will not receive any proceeds from the exchange offer. In consideration for issuing the new notes of a series as contemplated in this prospectus, we will receive in exchange outstanding old notes of the corresponding series in like principal amount. We will cancel all old notes surrendered in exchange for new notes in the exchange offer.
The proceeds from the offering of the old notes were approximately $1,850 million, less expenses, and were used to retire:
- $1,215 million principal amount of Anadarko's indebtedness;
- preferred stock of Anadarko with a liquidation preference of $85 million; and
- a portion of the indebtedness of Anadarko Canada Corporation totaling $520 million.
For further information regarding our current indebtedness, see "Capitalization."
CAPITALIZATION
The following table sets forth the actual cash and cash equivalents and the capitalization of Anadarko at March 31, 2001 and pro forma as adjusted to give effect to:
- the issuance in April 2001 by us of approximately $1,300 million senior notes due 2011 and 2031 used to retire approximately $1,215 million principal amount of Anadarko's indebtedness and Anadarko preferred stock with a liquidation preference of approximately $85 million; and
- the issuance in May 2001 of an additional $550 million of senior notes due 2011 to be used to retire a portion of the indebtedness of Anadarko Canada Corporation.
This table should be read in conjunction with the financial statements and related notes thereto included in Anadarko's Quarterly Report on Form 10-Q for the three months ended March 31, 2001, which is incorporated herein by reference.
AT MARCH 31, 2001
---------------------
PRO FORMA
ACTUAL AS ADJUSTED
------- -----------
(IN MILLIONS)
Cash and cash equivalents................................... $ 593 $ 580
======= =======
Total debt.................................................. $ 4,905 $ 4,978
------- -------
Stockholders' equity:
Preferred stock, par value $1.00 -- 2,000,000 shares
authorized, 200,000 shares issued (actual) and 115,053
shares issued (pro forma).............................. 200 115
Common stock, par value $0.10 -- 450,000,000 shares
authorized; 253,658,653 shares issued as of March 31,
2001................................................... 25 25
Paid-in capital........................................... 5,301 5,313
Retained earnings (as of March 31, 2001, retained earnings
were not restricted as to payment of dividends)........ 2,165 2,165
Deferred compensation and ESOP (1,073,963 shares as of
March 31, 2001)........................................ (118) (118)
Executives and Directors Benefits Trust, at market value
(2,000,000 shares as of March 31, 2001)................ (124) (124)
Accumulated other comprehensive loss...................... (5) (5)
------- -------
Total stockholders' equity.................................. 7,444 7,371
------- -------
Total capitalization........................................ $12,349 $12,349
======= =======
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RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth Anadarko's consolidated ratios of earnings to fixed charges and earnings to combined fixed charges and preferred stock dividends for the periods shown:
THREE MONTHS
YEARS ENDED DECEMBER 31, ENDED
-------------------------------- MARCH 31,
1996 1997 1998 1999 2000 2001
---- ---- ---- ---- ---- ------------
Fixed Charges................................. 3.34 3.04 0.05 1.77 7.35 14.16
Combined Fixed Charges and Preferred Stock
Dividends................................... 3.34 3.04 0.05 1.53 6.80 13.40
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Anadarko issued preferred stock in May 1998. No shares of preferred stock were outstanding during any of the periods prior to May 1998.
As a result of Anadarko's net loss in 1998, Anadarko's earnings did not cover fixed charges by $90 million and did not cover combined fixed charges and preferred stock dividends by $101 million in 1998.
The ratios were computed by dividing earnings by either fixed charges or combined fixed charges and preferred stock dividends. For this purpose, earnings include income before income taxes and fixed charges. Fixed charges include interest and amortization of debt expenses and the estimated interest component of rentals. Preferred stock dividends are adjusted to reflect the amount of pre-tax earnings required for payment.
THE EXCHANGE OFFER
TERMS OF THE EXCHANGE OFFER; PERIOD FOR TENDERING OLD NOTES
We issued an aggregate principal amount of $950 million of our 6 3/4% Series A Senior Notes due 2011 and an aggregate principal amount of $900 million of our 7 1/2% Series A Senior Notes due 2031 in private placements to Credit Suisse First Boston Corporation, as initial purchaser. Credit Suisse First Boston Corporation then resold the notes in an unregistered offering pursuant to Rule 144A and Regulation S under the Securities Act. Each series of the old notes was issued, and each series of the new notes will be issued, under an indenture relating to the notes, dated April 26, 2001, as amended by a supplemental indenture dated May 23, 2001, by and among us, Anadarko and The Bank of New York, as trustee. We sold the old notes to Credit Suisse First Boston Corporation, as purchaser, under purchase agreements, by and between Credit Suisse First Boston Corporation, us and Anadarko. When we sold the old notes to Credit Suisse First Boston Corporation, we also signed registration rights agreements in which we agreed to exchange all the issued and outstanding old notes for a like principal amount of our new notes to be issued in a registered offering. The terms of each series of the new notes are substantially identical to those of each series of the outstanding old notes, respectively, except that the transfer restrictions and registration rights relating to the old notes do not apply to the new notes.
Subject to the terms and conditions set forth in this prospectus and in the letter of transmittal, we are offering to exchange up to $950 million in aggregate principal amount of our 6 3/4% Series B Senior Notes due 2011 for an equal amount of our outstanding 6 3/4% Series A Senior Notes due 2011 and up to $900 million in aggregate principal amount of our 7 1/2% Series B Senior Notes due 2031 for an equal amount of our outstanding 7 1/2% Series A Senior Notes due 2031.
This prospectus and the enclosed letter of transmittal constitute an offer to exchange new notes for all of the issued and outstanding old notes. This exchange offer is being extended to all holders of the old notes. As of the date of this prospectus, $950 million aggregate principal amount of 6 3/4% Series A Senior Notes due 2011 and $900 million aggregate principal amount of 7 1/2% Series A Senior Notes due 2031 are
outstanding. This prospectus and the enclosed letter of transmittal are first being sent on or about , 2001, to all holders of old notes known to us.
Subject to the conditions listed below, we will accept for exchange all old notes which are properly tendered on or prior to the expiration of the exchange offer and not withdrawn as permitted below. The exchange offer will expire at 5:00 p.m., New York City time, on , 2001. However, if we, in our sole discretion, extend the period of time during which the exchange offer is open, the exchange offer will expire at the latest time and date to which we extend the exchange offer. Our obligation to accept old notes for exchange in the exchange offer is subject to the conditions listed below under the caption "-- Conditions to the Exchange Offer."
We expressly reserve the right, at any time and from time to time, to extend the period of time during which the exchange offer is open, and thereby delay acceptance for exchange of any old notes. If we elect to extend the period of time during which the exchange offer is open, we will give you oral or written notice of the extension and delay, as described below. During any extension of the exchange offer, all old notes previously tendered and not withdrawn will remain subject to the exchange offer and may be accepted for exchange by us. We will return to the registered holder, at our expense, any old notes not accepted for exchange as promptly as practicable after the expiration or termination of the exchange offer. In the case of an extension, we will issue a press release or other public announcement no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration of the exchange offer.
We expressly reserve the right to amend or terminate the exchange offer, and not to accept for exchange any old notes not previously accepted for exchange if any of the events described below under the caption "-- Conditions to the Exchange Offer" should occur. We will give you oral or written notice of any amendment, termination or non-acceptance as promptly as practicable.
Following completion of the exchange offer, we may, in our sole discretion, commence one or more additional exchange offers to those old note holders who did not exchange their old notes for new notes. The terms of these additional exchange offers may differ from those applicable to this exchange offer. We may use this prospectus, as amended or supplemented from time to time, in connection with any additional exchange offers. These additional exchange offers, if made, would take place from time to time until all outstanding old notes have been exchanged for new notes, subject to the terms and conditions contained in the prospectus and letter of transmittal we will distribute in connection with the additional exchange offers.
PROCEDURES FOR TENDERING OLD NOTES
Old notes tendered in the exchange offer must be in denominations of $1,000 principal amount and any integral multiple thereof.
When you tender your old notes, and we accept the old notes, this will constitute a binding agreement between you and us subject to the terms and conditions set forth in this prospectus and the enclosed letter of transmittal. Unless you comply with the procedures described below under the caption "-- Guaranteed Delivery Procedures," you must do one of the following on or prior to the expiration of the exchange offer to participate in the exchange offer:
- tender your old notes by sending the certificates for your old notes, in proper form for transfer, a properly completed and duly executed letter of transmittal, with any required signature guarantees, and all other documents required by the letter of transmittal, to The Bank of New York, as exchange agent, at one of the addresses listed below under the caption "-- Exchange Agent"; or
- tender your old notes by using the book-entry procedures described below under the caption "-- Book-Entry Transfer" and transmitting a properly completed and duly executed letter of transmittal, with any required signature guarantees, or an agent's message instead of the letter of transmittal, to The Bank of New York, as exchange agent, at one of the addresses listed below under the caption "-- Exchange Agent."
In order for a book-entry transfer to constitute a valid tender of your old notes in the exchange offer, the exchange agent must receive a confirmation of book-entry transfer of your old notes into the exchange agent's account at The Depository Trust Company prior to the expiration of the exchange offer. The term "agent's message" means a message, transmitted by The Depository Trust Company and received by the exchange agent and forming a part of the book-entry confirmation, which states that The Depository Trust Company has received an express acknowledgment from you that you have received and have agreed to be bound by the letter of transmittal. If you use this procedure, we may enforce the letter of transmittal against you.
THE METHOD OF DELIVERY OF CERTIFICATES FOR OLD NOTES, LETTERS OF TRANSMITTAL, AGENT'S MESSAGES AND ALL OTHER REQUIRED DOCUMENTS IS AT YOUR ELECTION. IF YOU DELIVER YOUR OLD NOTES BY MAIL, WE RECOMMEND REGISTERED MAIL, PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED. IN ALL CASES, YOU SHOULD ALLOW SUFFICIENT TIME TO ASSURE TIMELY DELIVERY. DO NOT SEND CERTIFICATES FOR OLD NOTES, LETTERS OF TRANSMITTAL OR AGENT'S MESSAGES TO US.
Signatures on a letter of transmittal or a notice of withdrawal, as the case may be, must be guaranteed unless you are either a registered old note holder and have not completed the box entitled "Special Issuance Instructions" or "Special Delivery Instructions" on the letter of transmittal or you are exchanging old notes for the account of an eligible guarantor institution. An eligible guarantor institution means:
- Banks (as defined in Section 3(a) of the Federal Deposit Insurance Act);
- Brokers, dealers, municipal securities dealers, municipal securities brokers, government securities dealers and government securities brokers (as defined in the Exchange Act);
- Credit unions (as defined in Section 19B(1)(A) of the Federal Reserve Act);
- National securities exchanges, registered securities associations and clearing agencies (as these terms are defined in the Exchange Act); and
- Savings associations (as defined in Section 3(b) of the Federal Deposit Insurance Act).
If signatures on a letter of transmittal or a notice of withdrawal are required to be guaranteed, the guarantor must be an eligible guarantor institution. If you plan to sign the letter of transmittal but you are not the registered holder of the old notes -- which term, for this purpose, includes any participant in The Depository Trust Company's system whose name appears on a security position listing as the owner of the old notes -- you must have the old notes signed by the registered holder of the old notes and that signature must be guaranteed by an eligible guarantor institution. You may also send a separate instrument of transfer or exchange signed by the registered holder and guaranteed by an eligible guarantor institution, but that instrument must be in a form satisfactory to us, in our sole discretion. In addition, if a person or persons other than the registered holder or holders of old notes signs the letter of transmittal, certificates for the old notes must be endorsed or accompanied by appropriate bond powers, in either case signed exactly as the name or names of the registered holder or holders that appear on the certificates for old notes.
All questions as to the validity, form, eligibility -- including time of receipt -- and acceptance of old notes tendered for exchange will be determined by us, in our sole discretion. Our determination will be final and binding. We reserve the absolute right to reject any and all tenders of old notes improperly tendered or not accept any old notes, the acceptance of which might be unlawful as determined by us or our counsel. We also reserve the absolute right to waive any defects or irregularities or conditions of the exchange offer as to any old notes either before or after the expiration of the exchange offer -- including the right to waive the ineligibility of any holder who seeks to tender old notes in the exchange offer. Our interpretation of the terms and conditions of the exchange offer as to any particular old notes either before or after the expiration of the exchange offer -- including the terms and conditions of the letter of transmittal and the accompanying instructions -- will be final and binding. Unless waived, any defects or irregularities in connection with tenders of old notes for exchange must be cured within a reasonable
period of time, as determined by us. Neither we, The Bank of New York, as exchange agent, nor any other person has any duty to give notification of any defect or irregularity with respect to any tender of old notes for exchange, nor will we have any liability for failure to give this notification.
If you are a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation, or act in a similar fiduciary or representative capacity, and wish to sign the letter of transmittal or any certificates for old notes or bond powers, you must indicate your status when signing. If you are acting in any of these capacities, you must submit proper evidence satisfactory to us of your authority to so act unless we waive this requirement.
By tendering your old notes, you represent to us:
- that you are not our "affiliate" as defined in Rule 405 under the Securities Act;
- that any new notes you receive in the exchange offer are being acquired by you in the ordinary course of your business;
- that at the time of the commencement of the exchange offer, you do not have any arrangement or understanding with any person to participate in the distribution of the new notes, as defined in the Securities Act, in violation of the Securities Act;
- if you are not a participating broker-dealer, that you are not engaged in, and do not intend to engage in, the distribution of the new notes, as defined in the Securities Act; and
- if you are a participating broker-dealer, that you will receive the new notes for your own account in exchange for old notes that were acquired by you as a result of your market-making or other trading activities and that you will deliver a prospectus in connection with any resale of the new notes you receive. As used in this prospectus, a "participating broker-dealer" is a broker-dealer that receives new notes for its own account in exchange for old notes that it acquired as a result of market-making or other trading activities. The SEC has taken the position that participating broker-dealers may fulfill their prospectus delivery requirements with respect to resales of the new notes -- other than a resale of an unsold allotment from the original sale of the old notes -- by delivering this prospectus to prospective purchasers. For further information regarding participating broker-dealers and the prospectus delivery requirement, see "Plan of Distribution."
ACCEPTANCE OF OLD NOTES FOR EXCHANGE; DELIVERY OF NEW NOTES
Upon satisfaction or waiver of all of the conditions to the exchange offer, we will accept, promptly after the expiration of the exchange offer, all old notes properly tendered and will issue the new notes promptly after acceptance of the old notes. For purposes of the exchange offer, we will be deemed to have accepted properly tendered old notes for exchange when, as and if we have given oral or written notice of acceptance to The Bank of New York, as exchange agent, with written confirmation of any oral notice to be given promptly after any oral notice.
For each outstanding note of a series accepted for exchange in the exchange offer, the holder of the old note will receive a new note of the same series having a principal amount at maturity equal to that of the surrendered old note. Interest on the new note will accrue:
- from the later of the last date to which interest was paid on the old note surrendered in exchange for the new note or if the old note is surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of the exchange and as to which interest will be paid, the date to which interest will be paid on such interest payment date; or
- if no interest has been paid on the old note, from and including April 26, 2001.
Payments of interest, if any, on old notes that were exchanged for new notes will be made on each May 1st and November 1st during which the new notes are outstanding to the person who, at the close of business on the April 15th or October 15th next preceding the interest payment date, is the registered
holder of the old notes if the record date occurs prior to the exchange, or is the registered holder of the new notes if the record date occurs on or after the date of the exchange, even if the old notes are cancelled after the record date and on or before the interest payment date.
In addition, if
- this registration statement is not declared effective on or prior to October 23, 2001 or the exchange offer is not completed by the 30th day from the date this registration statement is so declared effective,
- we are obligated to file a shelf registration statement and we and Anadarko fail to do so on or prior to the 45th day after the obligation arises or the shelf registration statement is not declared effective on or prior to the 60th day after the obligation arises, or
- if either the registration statement or the shelf registration statement is declared effective but then ceases to be effective or usable,
we and Anadarko agree to pay liquidated damages of $0.05 per week per $1,000 in principal amount of notes for each 90 day period until all defaults have been cured, up to a maximum of $0.25 per week per $1,000 in principal amount of notes.
In all cases, the issuance of new notes in exchange for old notes will be made only after The Bank of New York, as exchange agent, timely receives either certificates for all physically tendered old notes, in proper form for transfer, or a book-entry confirmation of transfer of the old notes into the exchange agent's account at The Depository Trust Company, as the case may be, a properly completed and duly executed letter of transmittal, with any required signature guarantees, and all other required documents or, in the case of a book-entry confirmation, a properly completed and duly executed letter of transmittal, with any required signature guarantees, or an agent's message instead of the letter of transmittal. If for any reason we do not accept any tendered old notes or if old notes are submitted for a greater principal amount than the holder desires to exchange, we will return the unaccepted or non-exchanged old notes without expense to the registered tendering holder. In the case of old notes tendered by book-entry transfer into the exchange agent's account at The Depository Trust Company by using the book-entry procedures described below, the unaccepted or non-exchanged old notes will be credited to an account maintained with The Depository Trust Company. Any old notes to be returned to the holder will be returned as promptly as practicable after the expiration or termination of the exchange offer.
BOOK-ENTRY TRANSFER
Within two business days after the date of this prospectus, The Bank of New York, as exchange agent, will establish an account at The Depository Trust Company for the old notes tendered in the exchange offer. Once established, any financial institution that is a participant in The Depository Trust Company's systems may make book-entry delivery of old notes by causing The Depository Trust Company to transfer the old notes into the exchange agent's account at The Depository Trust Company in accordance with The Depository Trust Company's procedures for transfer. Although delivery of the old notes may be effected through book-entry transfer at The Depository Trust Company, the letter of transmittal or facsimile of the letter of transmittal, with any required signature guarantees, or an agent's message instead of a letter of transmittal, and any other required documents, must be transmitted to and received by the exchange agent on or prior to the expiration of the exchange offer at one of the addresses listed below under the caption "-- Exchange Agent." In addition, the exchange agent must receive book-entry confirmation of transfer of the old notes into the exchange agent's account at The Depository Trust Company prior to the expiration of the exchange offer. If you cannot comply with these procedures, you may be able to use the guaranteed delivery procedures described below.
GUARANTEED DELIVERY PROCEDURES
If you are a registered holder of the old notes and wish to tender your old notes, but
- the certificates for the old notes are not immediately available,
- time will not permit your certificates for the old notes or other required documents to reach The Bank of New York, as exchange agent, before the expiration of the exchange offer, or
- the procedure for book-entry transfer cannot be completed before the expiration of the exchange offer,
then you may effect a tender of your old notes if:
- the tender is made through an eligible guarantor institution;
- prior to the expiration of the exchange offer, the exchange agent receives from an eligible guarantor institution a properly completed and duly executed notice of guaranteed delivery, substantially in the form we have provided, setting forth your name and address, and the amount of old notes you are tendering and stating that the tender is being made by notice of guaranteed delivery. These documents may be sent by overnight courier, registered or certified mail or facsimile transmission. If you elect to use this procedure, you must also guarantee that within three New York Stock Exchange, Inc. trading days after the date of execution of the notice of guaranteed delivery, the certificates for all physically tendered old notes, in proper form for transfer, or a book-entry confirmation of transfer of the old notes into the exchange agent's account at The Depository Trust Company, as the case may be, a properly completed and duly executed letter of transmittal, with any required signature guarantees, and all other required documents or, in the case of a book-entry confirmation, a properly completed and duly executed letter of transmittal, with any required signature guarantees, or an agent's message instead of the letter of transmittal, will be deposited by the eligible guarantor institution with the exchange agent; and
- the exchange agent receives the certificates for all physically tendered old notes, in proper form for transfer, or a book-entry confirmation of transfer of the old notes into the exchange agent's account at The Depository Trust Company, as the case may be, a properly completed and duly executed letter of transmittal, with any required signature guarantees, and all other required documents or, in the case of a book-entry confirmation, a properly completed and duly executed letter of transmittal, with any required signature guarantees, or an agent's message instead of the letter of transmittal, in each case, within three New York Stock Exchange, Inc. trading days after the date of execution of the notice of guaranteed delivery.
WITHDRAWAL RIGHTS
You may withdraw tenders of old notes at any time prior to the expiration of the exchange offer.
For a withdrawal to be effective, a written notice of withdrawal must be received by The Bank of New York, as exchange agent, prior to the expiration of the exchange offer at one of the addresses listed below under the caption "-- Exchange Agent." Any notice of withdrawal must specify the name of the person who tendered the old notes to be withdrawn, identify the old notes to be withdrawn, including the principal amount of the old notes, and, where certificates for old notes have been transmitted, specify the name in which the old notes are registered, if different from that of the withdrawing holder. If certificates for old notes have been delivered or otherwise identified to the exchange agent, then, prior to the release of the certificates, the withdrawing holder must also submit the serial numbers of the particular certificates to be withdrawn and a signed notice of withdrawal with signatures guaranteed by an eligible guarantor institution unless the holder is an eligible guarantor institution. If old notes have been tendered using the procedure for book-entry transfer described above, any notice of withdrawal must specify the name and number of the account at The Depository Trust Company to be credited with the withdrawn old notes and otherwise comply with the procedures of the book-entry transfer facility. All questions as to the validity,
form and eligibility -- including time of receipt -- of these notices will be determined by us. Our determination will be final and binding. Any old notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the exchange offer. Any old notes which have been tendered for exchange but which are not exchanged for any reason will be returned to the registered holder without cost to that holder as soon as practicable after withdrawal, non-acceptance of tender or termination of the exchange offer. In the case of old notes tendered by book-entry transfer into the exchange agent's account at The Depository Trust Company by using the book-entry transfer procedures described above, any withdrawn or unaccepted old notes will be credited to the tendering holder's account at The Depository Trust Company. Properly withdrawn old notes may be retendered at any time on or prior to the expiration of the exchange offer by following one of the procedures described above under "-- Procedures for Tendering Old Notes."
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provision of the exchange offer, we will not be required to accept any old notes for exchange or to issue any new notes in exchange for old notes, and we may terminate or amend the exchange offer if, at any time before the acceptance of the old notes for exchange or the exchange of new notes for old notes, any of the following events occurs:
- the exchange offer is determined to violate any applicable law or any applicable interpretation of the staff of the SEC;
- an action or proceeding is pending or threatened in any court or by any governmental agency that might materially impair our ability or Anadarko's ability to proceed with the exchange offer;
- any material adverse development occurs in any existing legal action or proceeding involving us or Anadarko;
- we do not receive any governmental approval we deem necessary for the completion of the exchange offer; or
- any of the conditions precedent to our obligations under the applicable registration rights agreements are not fulfilled.
These conditions are for our benefit only and we may assert them regardless of the circumstances giving rise to any condition. We may also waive any condition in whole or in part at any time in our sole discretion. Our failure at any time to exercise any of the foregoing rights will not constitute a waiver of that right and each right is an ongoing right that we may assert at any time.
In addition, we will not accept any old notes for exchange or issue any new notes in exchange for old notes, if at the time a stop order is threatened or in effect which relates to:
- the registration statement of which this prospectus forms a part; or
- the qualification under the Trust Indenture Act of 1939 of the indenture under which the old notes were issued and the new notes will be issued.
EXCHANGE AGENT
We have appointed The Bank of New York as the exchange agent for the exchange offer. All completed letters of transmittal and agent's messages should be directed to the exchange agent at one of the addresses listed below. Questions and requests for assistance, requests for additional copies of this
prospectus or the letter of transmittal, agent's messages and requests for notices of guaranteed delivery should be directed to the exchange agent at one of the following addresses:
By Regular or Certified Mail By Facsimile: To Confirm by Telephone
or Overnight Courier or Hand: or for Information Call:
(Eligible Guarantor Institutions Only)
The Bank of New York The Bank of New York The Bank of New York
101 Barclay St., 21 West 101 Barclay St., 21 West Attention: Corporate Trust
New York, NY 10286 New York, NY 10286 Administration
Attention: Corporate Trust Attention: Corporate Trust Phone: (212) 815-3750
Administration Administration
Fax: (212) 815-5915
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DELIVERY OF A LETTER OF TRANSMITTAL OR AGENT'S MESSAGE TO AN ADDRESS OTHER THAN THE ADDRESS LISTED ABOVE OR TRANSMISSION OF INSTRUCTIONS BY FACSIMILE OTHER THAN AS SET FORTH ABOVE IS NOT VALID DELIVERY OF THE LETTER OF TRANSMITTAL OR AGENT'S MESSAGE.
FEES AND EXPENSES
The principal solicitation is being made by mail by The Bank of New York, as exchange agent. We will pay the exchange agent customary fees for its services, reimburse the exchange agent for its reasonable out-of-pocket expenses incurred in connection with the provision of these services and pay other registration expenses, including fees and expenses of the trustee under the indenture relating to the notes, filing fees, blue sky fees and printing and distribution expenses. We will not make any payment to brokers, dealers or others soliciting acceptances of the exchange offer.
Additional solicitation may be made by telephone, facsimile or in person by our and our affiliates' officers and regular employees and by persons so engaged by the exchange agent.
ACCOUNTING TREATMENT
We will record the new notes at the same carrying value as the old notes, as reflected in our accounting records on the date of the exchange. Accordingly, we will not recognize any gain or loss for accounting purposes. The expenses of the exchange offer will be amortized over the term of the new notes.
TRANSFER TAXES
You will not be obligated to pay any transfer taxes in connection with the tender of old notes in the exchange offer unless you instruct us to register new notes in the name of, or request that old notes not tendered or not accepted in the exchange offer be returned to, a person other than the registered tendering holder. In those cases, you will be responsible for the payment of any applicable transfer tax.
CONSEQUENCES OF EXCHANGING OR FAILING TO EXCHANGE OLD NOTES
If you do not exchange your old notes for new notes in the exchange offer, your old notes will continue to be subject to the provisions of the indenture relating to the notes regarding transfer and exchange of the old notes and the restrictions on transfer of the old notes described in the legend on your certificates. These transfer restrictions are required because the old notes were issued under an exemption from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state securities laws. In general, the old notes may not be offered or sold, unless registered under the Securities Act, except under an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. We do not plan to register the old notes under the Securities Act.
Based on interpretations by the staff of the SEC, as set forth in no-action letters issued to third parties, we believe that the new notes you receive in the exchange offer may be offered for resale, resold or
otherwise transferred without compliance with the registration and prospectus delivery provisions of the Securities Act. However, you will not be able to freely transfer the new notes if:
- you are our "affiliate," as defined in Rule 405 under the Securities Act;
- you are not acquiring the new notes in the exchange offer in the ordinary course of your business;
- you have an arrangement or understanding with any person to participate in the distribution of the new notes, as defined in the Securities Act, you will receive in the exchange offer; or
- you are a participating broker-dealer.
We do not intend to request the SEC to consider, and the SEC has not considered, the exchange offer in the context of a similar no-action letter. As a result, we cannot guarantee that the staff of the SEC would make a similar determination with respect to the exchange offer as in the circumstances described in the no-action letters discussed above. Each holder, other than a broker-dealer, must acknowledge that it is not engaged in, and does not intend to engage in, a distribution of new notes and has no arrangement or understanding to participate in a distribution of new notes. If you are our affiliate, are engaged in or intend to engage in a distribution of the new notes or have any arrangement or understanding with respect to the distribution of the new notes you will receive in the exchange offer, you
- may not rely on the applicable interpretations of the staff of the SEC and
- must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction involving the new notes. If you are a participating broker-dealer, you must acknowledge that you will deliver a prospectus in connection with any resale of the new notes. In addition, to comply with state securities laws, you may not offer or sell the new notes in any state unless they have been registered or qualified for sale in that state or an exemption from registration or qualification is available and is complied with. The offer and sale of the new notes to "qualified institutional buyers" -- as defined in Rule 144A of the Securities Act -- is generally exempt from registration or qualification under state securities laws. We do not plan to register or qualify the sale of the new notes in any state where an exemption from registration or qualification is required and not available.
DESCRIPTION OF NOTES
The old notes were issued and the new notes will be issued under the indenture, dated April 26, 2001, as amended by a supplemental indenture dated May 23, 2001, by and among us, Anadarko, and The Bank of New York, as trustee.
The following summaries of certain provisions of the Indenture and the Registration Rights Agreements, by and among us, Anadarko and Credit Suisse First Boston Corporation, as initial purchaser of the old notes (the "Registration Rights Agreements"), are summaries only, do not purport to be complete and are qualified in their entirety by reference to all of the provisions of the Indenture and the Registration Rights Agreements.
You can find the definitions of certain capitalized terms in this section under the subheading "-- Definitions."
The terms of the notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended. The notes are subject to all such terms, and holders of notes are referred to the Indenture and the Trust Indenture Act for a statement thereof. The Indenture is filed as an exhibit to the registration statement of which this prospect forms a part.
The following description is a summary of the material provisions of the Indenture. It does not restate the Indenture in its entirety. We urge you to read the Indenture because it, and not this description, defines your rights as a holder of the notes.
BRIEF DESCRIPTION OF THE NOTES AND THE PARENT GUARANTEES
The Notes
The notes are:
- our unsecured general obligations;
- ranked on parity with all our other unsecured and unsubordinated indebtedness; and
- unconditionally guaranteed by Anadarko.
The old notes are and the new notes will be issued in fully registered form only, without coupons, in denominations of $1,000 and integral multiples thereof.
The Parent Guarantees
Each series of notes is irrevocably and unconditionally guaranteed on a senior unsecured basis by our parent company, Anadarko Petroleum Corporation, pursuant to a guarantee (each, a "Parent Guarantee") included in the Indenture. Pursuant to each Parent Guarantee, Anadarko Petroleum Corporation guarantees the due and punctual payment of the principal of, interest and premium on, and liquidated damages, with respect to the notes, when the same shall become due, whether by acceleration or otherwise. Each Parent Guarantee is enforceable against Anadarko without any need to first enforce the notes against us.
The Parent Guarantee of each series of notes:
- is Anadarko's unsecured and unsubordinated general obligation; and
- ranks on parity with all of Anadarko's other unsecured and unsubordinated indebtedness.
As of March 31, 2001, Anadarko had approximately $2.0 billion of indebtedness outstanding and $4.9 billion of indebtedness outstanding on a consolidated basis. The Parent Guarantees will be effectively subordinated to all existing and future obligations of Anadarko's subsidiaries. As of March 31, 2001, Anadarko's subsidiaries had $2.9 billion of indebtedness.
You should be aware that each series of notes comprises a new issue of securities for which there is currently no public market. If the notes are traded after their initial issuance, they may trade at a discount from their initial offering price, depending on prevailing interest rates, the market for similar securities, our performance and other factors. In addition, we do not know whether an active trading market will develop for the notes. To the extent that an active trading market does not develop, the price at which you may be able to sell the notes, if at all, may be less than the price you pay for them in this offering.
PRINCIPAL MATURITY AND INTEREST
The outstanding old notes were, and the new notes will be, issued in two series in the following respective total principal amounts:
- $950,000,000 million of 6 3/4% Senior Notes due 2011 (the "10 Year Notes"); and
- $900,000,000 million of 7 1/2% Senior Notes due 2031 (the "30 Year Notes").
We may, without the consent of the holders, increase such principal amounts in the future on the same terms and conditions and with the same CUSIP numbers as the notes being offered hereby.
The 10 Year Notes will mature on May 1, 2011, and the 30 Year Notes will mature on May 1, 2031. The 10 Year Notes and the 30 Year Notes bear interest at the respective rate per annum stated on the cover page hereof from April 26, 2001 or from the most recent date to which interest has been paid or provided for, payable semi-annually in arrears on May 1 and November 1 of each year, commencing November 1, 2001, to the Persons in whose names such notes are registered at the close of business on the April 15 or October 15 immediately preceding such interest payment date. Interest will be calculated on the basis of a 360-day year consisting of twelve 30-day months.
METHODS OF RECEIVING PAYMENTS ON THE NOTES
Principal of, premium, if any, and interest (and Liquidated Damages (as hereinafter defined), if any) on the notes will be payable, and the notes may be presented for registration of transfer or exchange, at our office or agency maintained for such purpose, which office or agency shall be maintained in the Borough of Manhattan, The City of New York. Except as set forth below, at our option, payment of interest may be made by check mailed to the holders of the notes at the addresses set forth upon our registry books. No service charge will be made for any registration of transfer or exchange of notes, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Until otherwise designated by us, our office or agency will be the corporate trust office of the Trustee presently located at the office of the Trustee in the Borough of Manhattan, The City of New York.
REDEMPTION
The notes of each series will be redeemable, at our option, at any time in whole or from time to time in part upon not less than 30 and not more than 60 days' notice mailed to each holder of notes of such series to be redeemed at the holder's address appearing in the register, on any date prior to maturity at a price equal to 100% of the principal amount thereof plus accrued and unpaid interest to the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the redemption date) plus the make-whole premium (the "Make-Whole Premium") applicable to such series of notes (the "Redemption Price"). In no event will the Redemption Price ever be less than 100% of the principal amount of the notes plus accrued and unpaid interest to the redemption date.
The amount of the Make-Whole Premium with respect to any note (or portion thereof) of any series to be redeemed will be equal to the excess, if any, of:
(a) the sum of the present values, calculated as of the redemption date, of:
(1) each interest payment that, but for such redemption, would have been payable on the note (or portion thereof) of such series being redeemed on each interest payment date occurring after the redemption date (excluding any accrued and unpaid interest for the period prior to the redemption date); and
(2) the principal amount that, but for such redemption, would have been payable at the final maturity of the note (or portion thereof) of such series being redeemed,
over
(b) the principal amount of the note (or portion thereof) of such series being redeemed.
The present values of each interest and principal payment referred to in clause (a) above will be determined in accordance with generally accepted principles of financial analysis. Such present values will be calculated by discounting the amount of each payment of interest or principal from the date that each such payment would have been payable, but for the redemption, to the redemption date at a discount rate equal to the Treasury Yield (as defined below) plus:
- 25 basis points in the case of the 10 Year Notes and
- 30 basis points in the case of the 30 Year Notes.
The Make-Whole Premium will be calculated by Credit Suisse First Boston Corporation or, if such firm is unwilling or unable to make such calculation, by an independent investment banking institution of national standing appointed by the Trustee (in any such case, an "Independent Investment Banker").
For purposes of determining the Make-Whole Premium, "Treasury Yield" means a rate of interest per annum equal to the weekly average yield to maturity of United States Treasury Notes that have a constant maturity that corresponds to the remaining term to maturity of the notes, calculated to the nearest 1/12 of a year (the "Remaining Term"). The Treasury Yield will be determined as of the third business day immediately preceding the applicable redemption date.
The weekly average yields of United States Treasury Notes will be determined by reference to the most recent statistical release published by the Federal Reserve Bank of New York and designated "H.15(519) Selected Interest Rates" or any successor release (the "H.15 Statistical Release"). If the H.15 Statistical Release sets forth a weekly average yield for United States Treasury notes having a constant maturity that is the same as the Remaining Term, then the Treasury Yield will be equal to such weekly average yield. In all other cases, the Treasury Yield will be calculated by interpolation, on a straight-line basis, between the weekly average yields on the United States Treasury notes that have a constant maturity closest to and greater than the Remaining Term and the United States Treasury Notes that have a constant maturity closest to and less than the Remaining Term (in each case as set forth in the H.15 Statistical Release). Any weekly average yields so calculated by interpolation will be rounded to the nearest 1/100th of 1%, with any figure of 1/200 of 1% or above being rounded upward. If weekly average yields for United States Treasury Notes are not available in the H.15 Statistical Release or otherwise, then the Treasury Yield will be calculated by interpolation of comparable rates selected by the Independent Investment Banker.
If less than all of the notes of any series are to be redeemed, the Trustee will select the notes of such series to be redeemed by such method as the Trustee shall deem fair and appropriate. The Trustee may select for redemption notes and portions of notes of such series in amounts of $1,000 or whole multiples of $1,000.
The notes will not be entitled to the benefit of any sinking fund or other mandatory redemption provisions.
COVENANTS
The Indenture does not contain event risk provisions designed to require us or Anadarko to redeem the notes, reset the interest rate or take other actions in response to highly leveraged transactions, changes in credit rating, change in control or other similar occurrences.
Corporate Existence
We and Anadarko will do or cause to be done all things necessary to preserve and keep in full force and effect our respective corporate existence, rights (charter and statutory) and franchises; provided, however, that we and Anadarko shall not be required to preserve any such right or franchise if Anadarko's board of directors shall determine that the preservation thereof is no longer desirable in the conduct of our business or Anadarko's business and that the loss thereof is not disadvantageous in any material respect to the holders of notes.
Limitation on Liens
Anadarko will not itself, and will not permit any of its domestic subsidiaries to, incur, issue, assume or guarantee any Debt, secured by a Mortgage on any Principal Property (as defined in the Indenture) or on any shares of stock or Indebtedness of any domestic subsidiary, without effectively providing that the notes (together with, if Anadarko shall so determine, any other indebtedness of Anadarko or such domestic subsidiary which is not subordinate in right of payment to the prior payment in full of such notes) shall be secured equally and ratably with (or prior to) such secured Debt, so long as such secured Debt shall be so secured. This covenant shall not apply to, and there shall be excluded from secured Debt in any computation under this covenant, Debt secured by:
(1) Mortgages existing at the date of the Indenture;
(2) Mortgages on property of, or on any shares of stock or Indebtedness of, any corporation existing at the time such corporation is merged into or consolidated with Anadarko or becomes a domestic subsidiary of Anadarko;
(3) Mortgages in favor of Anadarko or any of its domestic subsidiaries;
(4) Mortgages on property, shares of stock or Indebtedness (a) existing at the time of acquisition thereof (including acquisition through merger, consolidation or other reorganization); (b) or to secure the payment of all or any part of the purchase price thereof or construction thereon; or (c) to secure any Debt incurred prior to, at the time of, or within 180 days after the later of the acquisition, the completion of construction or the commencement of full operation of such property or within 180 days after the acquisition of such shares or Indebtedness for the purpose of financing all or any part of the purchase price thereof or construction thereon (if a commitment for such financing is obtained prior to or within such 180-day period, the applicable Mortgage shall be deemed to be included in this clause (4) whether or not such Mortgage is created within such 180-day period);
(5) Mortgages in favor of the United States of America, any state thereof, or any department, agency or instrumentality or political subdivision of either, or in favor of any other country or any political subdivision thereof;
(6) Mortgages on property to secure partial, progress, advance or other payments or any Debt incurred to finance all or any part of the purchase price or cost of construction, development or repair, alteration or improvement of the property subject to such Mortgage if the commitment for the financing is obtained not later than one year after the later to occur of the completion of or the placing into operation (exclusive of test and start-up periods) of such property;
(7) Mortgages on minerals or geothermal resources in place, or on related leasehold or other property interests, which are incurred to finance development, production or acquisition costs (including but not limited to Mortgages securing advance sale obligations);
(8) Mortgages on equipment used or usable for drilling, servicing or operation of oil, gas, coal or other mineral properties or of geothermal properties;
(9) Mortgages required by any contract or statute in order to permit Anadarko or any of its subsidiaries to perform any contract or subcontract made with or at the request of the United States of America, any state or any department, agency or instrumentality of either; and
(10) any extension, renewal or replacement (or successive extensions, renewals or replacements), of any Mortgage referred to in the foregoing clauses (1) to (9) of this covenant, so long as such extension, renewal or replacement Mortgage is limited to all or a part of the same property (plus improvements on such property), shares of stock or Indebtedness that secured the Mortgage so extended, renewed or replaced.
Notwithstanding anything mentioned above, Anadarko and any one or more of its domestic subsidiaries may issue, assume or guarantee debt secured by mortgages that would otherwise be subject to the foregoing restrictions in an aggregate amount which, together with the outstanding principal amount of all other secured debt of Anadarko and its domestic subsidiaries that would otherwise be subject to the foregoing restrictions, does not at any time exceed 10% of the aggregate amount of the assets of Anadarko and its subsidiaries after deducting therefrom all current liabilities, unamortized debt discount expense and other like intangibles as calculated on Anadarko's consolidated balance sheet as of a date within 150 days prior to the date of determination.
The following transactions shall not be deemed to create Debt secured by a Mortgage:
(a) the sale or other transfer of oil, gas, coal or other minerals in place for a period of time until, or in an amount such that, the transferee will realize therefrom a specified amount of money (however determined) or a specified amount of oil, gas, coal or other minerals, or the sale or other transfer of any other interest in property of the character commonly referred to as an oil, gas, coal or other mineral payment or a production payment; and
(b) the sale or other transfer by Anadarko or a domestic subsidiary of properties to a partnership, joint venture or other entity whereby Anadarko or such domestic subsidiary would retain partial ownership of such properties.
Consolidation, Merger and Sale of Assets; Assignment of Obligations
Anadarko, without the consent of any holders of outstanding notes, may consolidate with or merge into any other Person, or convey, transfer or lease its assets substantially as an entirety to any Person, provided that the Person formed by such consolidation or into which Anadarko is merged, and the Person which acquires by conveyance or transfer or leases the assets of Anadarko substantially as an entirety, is organized under the laws of any United States jurisdiction and assumes Anadarko's obligations on each Parent Guarantee and under the Indenture, that after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing, and that certain other conditions are met. Similarly, we, without the consent of any holders of outstanding notes, may consolidate with or merge into any other Person, or convey, transfer or lease our assets substantially as an entirety to any Person, provided that the Person formed by such consolidation or into which we are merged, and the Person which acquires by conveyance or transfer or leases our assets substantially as an entirety, is organized under the laws of any United States or Canadian jurisdiction and assumes our obligations on the notes and under the Indenture, that after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing, that the Parent Guarantees remain in full force and effect and that certain other conditions are met.
In addition, we may assign our obligations under the notes to any other wholly owned subsidiary of Anadarko at any time, provided that the assignee agrees to be bound by the terms of the Indenture and each Parent Guarantee remains in full force and effect.
Modification and Waiver
Modifications and amendments of the Indenture may be made by us, Anadarko and the Trustee with the consent of the holders of a majority in principal amount of the outstanding notes affected thereby; provided, however, that no such modification or amendment may, without the consent of the holder of each outstanding note affected thereby:
- change the maturity of any installment of principal of or interest on or the interest rate of any note;
- reduce the principal amount of (or premium, if any) or interest on, any note;
- change the place or currency of payment of principal of (or premium, if any) or interest on, any note;
- impair the right to institute suit for the enforcement of any payment on or with respect to any note; or
- reduce the percentage in principal amount of outstanding notes of any series, the consent of the holders of which is required for modification or amendment of the Indenture or for waiver of compliance with certain provisions of the Indenture or for waiver of certain defaults.
Without the consent of any holder of outstanding notes, we may amend or supplement the Indenture and each series of notes to cure any ambiguity or inconsistency or to provide for notes in bearer form in addition to or in place of registered notes or to make any other provisions that do not adversely affect the rights of any holder of outstanding notes.
The holders of a majority in principal amount of the outstanding notes of any series may on behalf of the holders of all notes of that series waive any past default under the Indenture with respect to that series, except a default in the payment of the principal of (or premium, if any) or interest on any note of that series or in respect of a provision which under the Indenture cannot be modified or amended without the consent of the holder of each outstanding note of that series affected.
REPORTS
Whether or not we and Anadarko are subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, Anadarko will deliver to the Trustee
and to each holder of notes and to prospective purchasers of notes identified to
us by the initial purchaser, within 5 days after Anadarko is or would have been
(if Anadarko were subject to such reporting obligations) required to file such
with the SEC, annual and quarterly consolidated financial statements
substantially equivalent to financial statements that would have been included
in reports filed with the SEC, if Anadarko were subject to the requirements of
Section 13 or 15(d) of the Exchange Act, including, with respect to annual
information only, a report thereon by our certified independent public
accountants as such would be required in such reports to the SEC, and, in each
case, together with a management's discussion and analysis of financial
condition and results of operations which would be so required and, unless the
SEC will not accept such reports, file with the SEC the annual, quarterly and
other reports which it is or would have been required to file with the SEC.
EVENTS OF DEFAULT AND REMEDIES
The Indenture defines an "Event of Default" as:
- failure to pay interest (or Liquidated Damages) upon any note of that series when it becomes due and payable, and continuance of such default for a period of 60 days;
- failure to pay the principal of (or premium, if any, on) any note of that series at its Maturity;
- our failure or the failure by Anadarko to perform any other covenant contained in the Indenture, continued for 90 days after written notice as provided in the Indenture;
- default by us or Anadarko in payment when due of other indebtedness in an aggregate principal amount in excess of $25,000,000 causing such indebtedness to become, or to be declared, due prior to its stated maturity and such acceleration is not cured within 30 days after notice;
- certain events in bankruptcy, insolvency or reorganization; and
- the Parent Guarantee in respect of notes of any series ceases to be in full force and effect or becomes unenforceable or invalid or is declared null and void (other than in accordance with the terms of such Parent Guarantee) or Anadarko denies or disaffirms its obligations under such Parent Guarantee.
If an Event of Default with respect to notes of any series at the time outstanding shall occur and be continuing, either the Trustee or the holders of at least 25% in principal amount of the outstanding notes of such series may declare the principal amount of all notes of that series to be due and payable immediately. However, any time after a declaration of acceleration with respect to notes of any series has been made, but before judgment or decree based on such acceleration has been obtained, the holders of a majority in principal amount of outstanding notes of that series may, under certain circumstances, rescind and annul such acceleration. For information as to waiver of defaults, see "Modification and Waiver."
Subject to the duties of the Trustee to act with the required standard of care if an Event of Default shall occur and be continuing, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request or direction of any of the holders, unless such holders shall have offered to the Trustee reasonable security or indemnity. Subject to such provisions for security or indemnification of the Trustee, the holders of a majority in principal amount of the outstanding notes of any series will 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 notes of that series.
We will be required to furnish to the Trustee annually a statement as to any defaults in the performance of our or Anadarko's obligations under the Indenture.
DEFEASANCE
We may elect to defease and be discharged from any and all obligations with respect to any notes (except for the obligations to register the transfer or exchange of such notes, to replace temporary or mutilated, destroyed, lost or stolen notes, to maintain an office or agency in respect of the notes and to hold moneys for payment in trust) ("defeasance"), upon the deposit with the Trustee (or other qualifying trustee), in trust for such purpose, of money, and/or U.S. Government Obligations (as defined in the Indenture), which through the payment of principal and interest in accordance with their terms will provide money, in an amount sufficient to pay the principal of (and premium, if any) and interest on such notes, and any mandatory sinking fund or analogous payments thereon, on the scheduled due dates therefor. In the event of a defeasance as provided above with respect to any notes, holders of such notes would be able to look only to the trust fund established for payments of principal of (and premium, if any) and interest on such notes until maturity. Further, under federal income tax laws, such a defeasance could be a taxable exchange of such notes for interests in the trust. As a consequence, a holder may recognize gain or loss equal to the difference between the holder's cost or other tax basis for such notes and the value of the holder's interest in the trust, and thereafter may be required to include in income a share of the income, gain and loss of the trust.
GOVERNING LAW
The Indenture and the notes are governed by, and will be construed in accordance with, the laws of the State of New York.
NO PERSONAL LIABILITY OF STOCKHOLDERS, OFFICERS, DIRECTORS
No direct or indirect stockholder, employee, officer or director, as such, past, present or future of us or Anadarko or any successor entity shall have any personal liability in respect of our or Anadarko's obligations under the Indenture or the notes solely by reason of his or its status as such stockholder, employee, officer or director, except that this provision shall in no way limit the obligation of Anadarko pursuant to each Parent Guarantee.
REGARDING THE TRUSTEE
The Bank of New York is the Trustee under the Indenture. The Trustee or its affiliates have other customary banking relationships with us and our affiliates.
DEFINITIONS
"Debt" means indebtedness for money borrowed.
"Maturity", when used with respect to any note, means the date on which the principal of such note or an installment of principal becomes due and payable as provided in the note or the Indenture, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
"Mortgage" means and includes any mortgage, pledge, lien, security interest, conditional sale or other title retention agreement or other similar encumbrance.
"Stated Maturity" when used with respect to any note or any installment of principal thereof or interest thereon, means the date specified in such note as the fixed date on which the principal of such note or such installment of principal or interest is due and payable.
BOOK-ENTRY; DELIVERY AND FORM
Except as set forth below, the new notes will initially be issued in the form of one or more registered new notes in global form without interest coupons. Each global note will be deposited with the trustee as custodian for, and registered in the name of a nominee of, The Depository Trust Company.
Ownership of beneficial interests in a global note will be limited to persons who have accounts with The Depository Trust Company ("participants") or persons who hold interests through participants. Ownership of beneficial interests in a global note will be shown on, and the transfer of that ownership will be effected only through, records maintained by The Depository Trust Company or its nominee, with respect to interests of participants, and the records of participants, with respect to interests of persons other than participants. Holders may hold their interests in a global note directly through The Depository Trust Company if they are participants in such system, or indirectly through organizations which are participants in such system.
So long as The Depository Trust Company, or its nominee, is the registered owner or holder of a global note, The Depository Trust Company or such nominee, as the case may be, will be considered the sole owner or holder of the notes represented by such global note for all purposes under the indenture and the notes. No beneficial owner of an interest in a global note will be able to transfer that interest except in accordance with The Depository Trust Company's applicable procedures, in addition to those provided for under the indenture.
Payments of the principal of, and interest on, a global note will be made to The Depository Trust Company or its nominee, as the case may be, as the registered owner thereof. Neither we, the trustee nor any Paying Agent will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a global note or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
We expect that The Depository Trust Company or its nominee, upon receipt of any payment of principal or interest in respect of a global note, will credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount of such global note as shown on the records of The Depository Trust Company or its nominee. We also expect that payments by participants to owners of beneficial interests in such global note held through such participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers registered in the names of nominees for such customers. Such payments will be the responsibility of such participants.
Transfers between participants in The Depository Trust Company will be effected in the ordinary way in accordance with The Depository Trust Company rules and will be settled in same-day funds.
We expect that The Depository Trust Company will take any action permitted to be taken by a holder of notes, including the presentation of notes for exchange as described below, only at the direction of one or more participants to whose account The Depository Trust Company interests in a global note is credited and only in respect of such portion of the aggregate principal amount of notes as to which such participant or participants has or have given such direction. However, if there is an Event of Default under the notes, The Depository Trust Company will exchange the global note for notes in registered form without interest coupons ("certificated notes"), which it will distribute to its participants.
We understand that The Depository Trust Company is a limited purpose trust company organized under the laws of the State of New York, a "banking organization" within the meaning of New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the Uniform Commercial Code and a "Clearing Agency" registered pursuant to the provisions of Section 17A of the Securities and Exchange Act of 1934, as amended. The Depository Trust Company was created to hold securities for its participants and facilitate the clearance and settlement of securities transactions between participants through electronic book-entry changes in accounts of its participants, thereby eliminating the need for physical movement of certificates. Indirect access to The Depository Trust Company system is available to others such as banks, brokers, dealers and trust companies and certain other organizations that clear through or maintain a custodial relationship with a participant, either directly or indirectly ("indirect participants").
Although The Depository Trust Company is expected to follow the foregoing procedures in order to facilitate transfers of interests in a global note among participants of The Depository Trust Company, it is under no obligation to perform or continue to perform such procedures, and such procedures may be discontinued at any time. Neither we nor the trustee will have any responsibility for the performance by The Depository Trust Company or its participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
If The Depository Trust Company is at any time unwilling or unable to continue as a depositary for the global notes and we do not appoint a successor depositary within 90 days, we will issue certificated notes in exchange for the global notes. Holders of an interest in a global note may receive certificated notes in accordance with The Depository Trust Company's rules and procedures in addition to those provided for under the indenture.
REGISTRATION RIGHTS; LIQUIDATED DAMAGES
The following is a summary of the material provisions of each Registration Rights Agreements applicable to the old notes. The Registration Rights Agreements are exhibits to the registration statement of which this prospectus forms a part and are incorporated by reference in this prospectus in their entirety. A copy of each Registration Rights Agreement is available from us by any holder of old notes upon request.
In each Registration Rights Agreement, we and Anadarko agreed with Credit Suisse First Boston Corporation, for the benefit of the holders of the old notes, to file an exchange offer registration statement with the SEC within 120 days after the closing date of each respective issuance, and use our respective best efforts to have it declared effective at the earliest possible time. We and Anadarko will also use our respective best efforts to cause the exchange offer registration statement to be effective continuously, to
keep the exchange offer open for a period of not less than 20 business days and cause the exchange offer to be consummated no later than the 30th day after it is declared effective by the SEC. Pursuant to the exchange offer, certain holders of notes which constitute transfer restricted securities may exchange their transfer restricted securities for registered Notes. To participate in the exchange offer, each holder must represent that it is not an affiliate of us or Anadarko, it is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any person to participate in, a distribution of the notes that are issued in the exchange offer, and that it is acquiring the notes in the exchange offer in its ordinary course of business.
If (i) the exchange offer is not permitted by applicable law or SEC policy,
(ii) the registered exchange offer is not completed by the 210th day after the
closing date of the offering, (iii) Credit Suisse First Boston Corporation so
requests with respect to notes not eligible to be exchanged and held by it after
the exchange offer or (iv) any holder of notes which are transfer restricted
securities notifies us prior to the 20th business day following the consummation
of the exchange offer that (a) it is prohibited by law or SEC policy from
participating in the exchange offer, (b) it may not resell the notes acquired by
it in the exchange offer to the public without delivering a prospectus, and the
prospectus contained in the exchange offer registration statement is not
appropriate or available for such resales by it, or (c) it is a broker-dealer
and holds notes acquired directly from us or any of our affiliates, we and
Anadarko will file with the SEC a shelf registration statement to register for
public resale the transfer restricted securities held by any such holder who
provides us with certain information for inclusion in the shelf registration
statement.
For the purposes of the Registration Rights Agreements, "transfer
restricted securities" means each note until the earliest on the date of which
(i) such note is exchanged in the exchange offer and entitled to be resold to
the public by the holder thereof without complying with the prospectus delivery
requirements of the Securities Act, (ii) such note has been disposed of in
accordance with the shelf registration statement, (iii) such note is disposed of
by a broker-dealer pursuant to the "Plan of Distribution" (including delivery of
the prospectus contained therein) or (iv) such note is distributed to the public
pursuant to Rule 144 under the Securities Act.
The Registration Rights Agreements provide that (i) if we or Anadarko fail to file an exchange offer registration statement with the SEC on or prior to the 120th day after the closing date of each respective issuance, (ii) if the exchange offer registration statement is not declared effective by the SEC on or prior to the 180th day after the closing date of each respective issuance, (iii) if the Exchange Offer is not consummated on or before the 30th day after the exchange offer registration statement is declared effective, (iv) if obligated to file the shelf registration statement and we and Anadarko fail to file the shelf registration statement with the SEC on or prior to the 45th day after such filing obligation arises, (v) if obligated to file a shelf registration statement and the shelf registration statement is not declared effective on or prior to the 60th day after the obligation to file a shelf registration statement arises, or (vi) if the exchange offer registration statement or the shelf registration statement, as the case may be, is declared effective but thereafter ceases to be effective or useable in connection with resales of the transfer restricted securities, for such time of non-effectiveness or non-usability (each, a "Registration Default"), we and Anadarko agree to pay to each holder of transfer restricted securities affected thereby liquidated damages ("Liquidated Damages") in an amount equal to $0.05 per week per $1,000 in principal amount of transfer restricted securities held by such Holder for each week or portion thereof that the Registration Default continues for the first 90 day period immediately following the occurrence of such Registration Default. The amount of the Liquidated Damages shall increase by an additional $0.05 per week per $1,000 in principal amount of transfer restricted securities with respect to each subsequent 90 day period until all Registration Defaults have been cured, up to a maximum amount of Liquidated Damages of $0.25 per week per $1,000 in principal amount of transfer restricted securities. We and Anadarko shall not be required to pay Liquidated Damages for more than one Registration Default at any given time. Following the cure of all Registration Defaults, the accrual of Liquidated Damages will cease.
All accrued Liquidated Damages shall be paid by us or Anadarko to holders entitled thereto by wire transfer to the accounts specified by them or by mailing checks to their registered address if no such accounts have been specified.
UNITED STATES FEDERAL AND CANADIAN INCOME TAX CONSIDERATIONS
The discussion below is a general description of the material United States federal and Canadian income tax consequences to beneficial owners of the notes. This discussion does not take into account the individual circumstances of any particular investor and does not purport to discuss all of the possible tax consequences of the ownership and disposition of the notes. Therefore, prospective investors are urged to consult their own tax advisors concerning the tax consequences of holding and disposing of the notes, including the application of state, provincial, local, foreign and other tax laws.
UNITED STATES
The following is a discussion of the material U.S. federal income tax
consequences of the ownership and disposition of the notes. Unless otherwise
stated, this discussion is limited to the tax consequences to those persons who
purchased the notes from us and who hold the notes as capital assets under
Section 1221 of the Internal Revenue Code of 1986, as amended (the "Code"). The
discussion does not address specific tax consequences that may be relevant to
particular persons including, for example, financial institutions,
broker-dealers, insurance companies, tax-exempt organizations, and persons in
special situations, such as those who hold notes as part of a straddle, hedge,
conversion transaction, or other integrated investment. In addition, this
discussion does not address U.S. federal alternative minimum tax consequences or
any aspect of state, local or foreign taxation. This discussion is based upon
current U.S. federal income tax laws, regulations, rulings and judicial
decisions, all of which are subject to change, possibly with retroactive effect.
PROSPECTIVE PURCHASERS OF THE NOTES ARE URGED TO CONSULT THEIR OWN TAX ADVISORS CONCERNING THE SPECIFIC U.S. FEDERAL INCOME TAX CONSEQUENCES TO THEM OF OWNING AND DISPOSING OF THE NOTES, AS WELL AS THE APPLICATION OF STATE, PROVINCIAL, LOCAL AND FOREIGN INCOME AND OTHER TAX LAWS.
TAX CONSEQUENCES TO U.S. HOLDERS
For purposes of this discussion, you are a "U.S. holder" if you are a beneficial owner of a note and are a U.S. citizen or resident, a corporation, partnership or other entity created or organized in or under the laws of the U.S. or of any political subdivision thereof, an estate, the income of which is subject to U.S. federal income taxation regardless of its source, or a trust if a U.S. court is able to exercise primary supervision over its administration and one or more U.S. persons have the authority to control all of its substantial decisions.
The Exchange Offer. The exchange of old notes for new notes will not result in any U.S. federal income tax consequences to you. You will have the same adjusted tax basis and holding period in the new notes as you had in the old notes immediately before the exchange.
Taxation of Interest. If you are a U.S. holder, interest on your notes generally will be taxable as ordinary interest income at the time payments are accrued or are received in accordance with your regular method of accounting for federal income tax purposes. Special rules governing the treatment of market discount and amortizable premium are described below. In the event we do not comply with certain covenants, we will be obligated to pay specified liquidated damages to the holders of the notes. We believe the contingency that we will pay these additional amounts is "remote and incidental" within the meaning of the applicable Treasury regulations. On that basis, we believe the possibility that these additional amounts may be paid should not be taken into account in computing original issue discount.
Market Discount. If you purchased a note for less than the stated redemption price of the note at maturity, the difference is considered market discount to the extent it exceeds a specified de minimis exception. Under the de minimis exception, market discount is treated as zero if the market discount is less than 1/4 of one percent of the stated redemption price of the note multiplied by the number of complete years to maturity from the date acquired. If you acquired a note at a market discount, you will be required to treat as ordinary income any partial principal payment or gain recognized on the disposition of that note to the extent of the market discount which has not previously been included in your income
and is treated as having accrued at the time of the payment or disposition. In addition, you may be required to defer the deduction of a portion of the interest on any indebtedness incurred or maintained to purchase or carry the note until the note is disposed of in a taxable transaction, unless you elect to include market discount in income as it accrues.
Any market discount will be considered to accrue ratably during the period from the date of acquisition to the maturity date of the note, unless you elect to accrue on a constant interest method. You may elect to include market discount in income currently as it accrues on either a ratable or constant interest method, in which case the rule described above regarding deferral of interest deductions will not apply. This election to include market discount in income currently, once made, applies to all market discount obligations acquired on or after the first taxable year to which the election applies and may not be revoked without the consent of the Internal Revenue Service.
Amortizable Premium. If you acquired a note for an amount which is greater than its principal amount, you will be considered to have purchased the note with amortizable bond premium equal to the amount of that excess. You may elect to amortize the premium using a constant yield method over the period from the acquisition date to the maturity date of the note. Amortized amounts may be offset only against interest paid with respect to the note. Once made, an election to amortize and offset interest on the note may be revoked only with the consent of the Internal Revenue Service and will apply to all notes you hold on the first day of the taxable year to which the election relates and to subsequent taxable years and to all notes you subsequently acquire.
Sale, Exchange, Redemption or Retirement of the Notes. Upon the sale, exchange, redemption or retirement of a note you generally will recognize gain or loss equal to the difference, if any, between, the proceeds of the sale, exchange or retirement (less any portion allocable to accrued and unpaid interest) and your adjusted tax basis in the note. Your adjusted tax basis in the notes generally will be your cost for the notes, increased by the amount of any market discount previously included in your gross income with respect to the note, decreased by the portion of any premium applied to reduce interest payments as described above and any principal payments you receive.
The gain or loss you recognize on the sale, exchange, redemption or retirement of the notes generally will be capital gain or loss (except to the extent the gain represents market discount on the note not previously included in gross income, to which extent the gain would be treated as ordinary income) and will be long-term capital gain or loss if you have held the notes for more than one year. You should consult your tax advisor regarding the treatment of capital gains (which may be taxed at lower rates than ordinary income for certain noncorporate taxpayers) and losses (the deductibility of capital losses by U.S. holders is subject to limitations).
To the extent that the amount realized represents accrued but unpaid interest, that amount must be taken into account as interest income, if it was not previously included in your income. Please read "-- Taxation of Interest" above.
Foreign Tax Credit Considerations. We will treat interest on the notes as income from sources within the United States for U.S. foreign tax credit purposes. As described below under "-- Canada" and subject to the limitations therein, payment of interest on the notes will not be subject to Canadian withholding tax. If, however, the interest payments become subject to Canadian withholding taxes as the result of a change in Canadian tax law, U.S. holders will be treated for U.S. federal income tax purposes as having actually received the amount of the taxes withheld and as having paid that amount to the Canadian taxing authorities. As a result, the amount of interest income included in your gross income generally will be greater than the amount of cash you actually receive from us for the interest income. You may be able, subject to generally applicable limitations, to claim a foreign tax credit or take a deduction for Canadian withholding taxes imposed on interest payments. Gain or loss on the sale, redemption, retirement at maturity or other taxable disposition of a note generally will constitute U.S. source gain or loss for U.S. foreign tax credit purposes.
TAX CONSEQUENCES TO NON-U.S. HOLDERS
For purposes of this discussion, you are a "non-U.S. holder" if you are a beneficial owner of a note that is not a U.S. holder.
The Exchange Offer. The exchange of old notes for new notes will not result in any U.S. federal income tax consequences to you. You will have the same adjusted tax basis and holding period in the new notes as you had in the old notes immediately before the exchange.
Taxation of Interest. If you are a non-U.S. holder, you generally will not be subject to U.S. federal income or withholding tax on interest paid on the notes so long as that interest is not effectively connected with your conduct of a trade or business within the U.S., and:
- you do not actually or constructively own 10% or more of the total combined voting power of the stock of Anadarko;
- you are not a "controlled foreign corporation" with respect to which Anadarko is a "related person" within the meaning of the Code; and
- either (A) you certify to the applicable payor or its agent, under penalties of perjury, that you are not a United States person and provide your name and address on an Internal Revenue Service Form W-8BEN (or a suitable substitute form), or (B) a securities clearing organization, bank or other financial institution that holds customers' securities in the ordinary course of its trade or business (a "financial institution") and holds the note, certifies under penalties of perjury that such an Internal Revenue Service Form W-8BEN (or a suitable substitute form) has been received from the beneficial owner by it or by a financial institution between it and the beneficial owner and furnishes the payor with a copy thereof.
If these conditions are not satisfied, then interest paid on the notes will be subject to U.S. federal income withholding tax at a rate of 30% unless that rate is reduced or eliminated pursuant to an applicable tax treaty.
Sale, Exchange or Retirement of the Notes. Any gain you recognize on the sale, exchange, redemption or retirement or other taxable disposition of a note generally will be exempt from U.S. federal income and withholding tax unless:
- the gain is effectively connected with your conduct of a trade or business within the U.S.; or
- if you are an individual, you are present in the U.S. for 183 days or more during the taxable year of such disposition and either (A) you have a "tax home" in the United States and certain other conditions are present, or (B) the gain from the disposition is attributable to your office or other fixed place of business in the United States.
Effectively Connected Income. If the interest, gain or other income you recognize on a note is effectively connected with your conduct of a trade or business within the U.S., you will be exempt from the withholding tax previously discussed if you provide us with a properly completed and executed Internal Revenue Service Form W-8 ECI, but generally will be subject to U.S. federal income tax on the interest, gain or other income at regular federal income tax rates. In addition to regular U.S. federal income tax, if you are a corporation, you may be subject to a branch profits tax equal to 30% of your effectively connected earnings and profits, as adjusted for certain items, unless you qualify for a lower rate under an applicable tax treaty.
Federal Estate Taxes. A note held by an individual who at the time of death is not a citizen or resident of the U.S. will not be subject to U.S. federal estate tax as a result of such individual's death, provided that the individual does not actually or constructively own 10% or more of the combined voting power of all classes of the stock of Anadarko entitled to vote and that the interest accrued on the notes was not effectively connected with that holder's conduct of a trade or business within the U.S.
INFORMATION REPORTING AND BACKUP WITHHOLDING
U.S. Holders. Information reporting will apply to payments of interest on, or the proceeds of the sale or other disposition of, the notes with respect to certain noncorporate U.S. holders, and backup withholding at a rate of 31% may apply unless the recipient of such payment supplies a taxpayer identification number, certified under penalties of perjury, as well as certain other information or otherwise establishes an exemption from backup withholding. Any amount withheld under the backup withholding rules is allowable as a credit against the U.S. holder's federal income tax, provided the required information is provided to the Internal Revenue Service.
Non-U.S. Holders. Backup withholding and information reporting will not apply to payments of principal on the notes by us or any of our agents to a non-U.S. holder if the non-U.S. holder certifies as to its non-U.S. holder status under penalties of perjury or otherwise establishes an exemption (provided that neither we nor our agent has actual knowledge that the holder is a United States person or that the conditions of any other exemptions are not in fact satisfied).
The payment of the proceeds of the disposition of notes to or through the United States office of a United States or foreign broker will be subject to information reporting and backup withholding unless the owner provides the certification described above or otherwise establishes an exemption. The proceeds of a disposition effected outside the United States by a non-U.S. holder of notes to or through a foreign office of a broker generally will not be subject to backup withholding or information reporting. However, if that broker is a United States person, a controlled foreign corporation for United States tax purposes, a foreign person 50% or more of whose gross income from all sources for certain periods is effectively connected with a trade or business in the United States, or a foreign partnership that is engaged in the conduct of a trade or business in the United States or that has one or more partners that are United States persons who in the aggregate hold more than 50% of the income or capital interests in the partnership, information reporting requirements will apply unless such broker has documentary evidence in its files of the holder's non-U.S. status and has no actual knowledge to the contrary or unless the holder otherwise establishes an exemption.
Any amount withheld under the backup withholding rules will be refunded or is allowable as a credit against the non-U.S. holder's federal income tax liability, if any, provided the required information or appropriate claim for refund is provided to the Internal Revenue Service.
CANADA
NON-RESIDENTS OF CANADA
The following is a general discussion of the principal Canadian federal income tax considerations generally applicable to a purchaser of the notes who, for the purposes of the Income Tax Act (Canada) (the "ITA"), is at all relevant time neither resident or deemed to be resident in Canada and who does not use or hold and is not deemed to use or hold the notes in or in the course of carrying on business in Canada, and is not an insurer that carries on an insurance business in Canada and elsewhere (a "Non-Resident Holder"), deals at arm's length with us and holds the notes as capital property. This summary is not applicable to a holder that is a "financial institution," as defined by the ITA for purposes of certain rules applicable to income, gain or loss arising from "market-to-market property." Purchasers of the notes that are "financial institutions" for the purposes of these rules should consult their own tax advisers. This summary is based on the current provisions of the ITA and the regulations thereunder, the current administration practices of the Canada Customs and Revenue Agency and all specific proposals to amend the ITA and the regulations (the "Proposed Amendments") announced by or on behalf of the Minister of Finance (Canada) prior to the date of this prospectus. This summary is not exhaustive of all possible Canadian federal income tax considerations and, except for the Proposed Amendments, does not take into account or anticipate any changes in law whether by judicial, governmental or legislative decision or action, nor does it take into account tax legislation or considerations of any province or territory of Canada or any jurisdiction other than Canada. The provisions of provincial income tax legislation vary from province to province in Canada and in some cases differ from federal income tax legislation.
This summary is of a general nature only and is not intended to be, and should not be interpreted as, legal or tax advice to any particular holder. Accordingly, prospective purchasers of notes are urged to consult their own tax advisors as to the particular tax consequences to them of the purchase, ownership and disposition of the notes including the application and effect, if any, of the income tax laws of any country, province, state or local tax authority.
Under the ITA, the payment of interest, including any Make-Whole Premium that is deemed to be interest, or principal on a note to a Non-Resident Holder will be exempt from Canadian withholding tax. In addition, under the ITA, no other taxes on income (including taxable capital gains) will be payable by the Non-Resident Holder in respect of the acquisition, ownership, or disposition of a note.
The exchange of old notes for new notes will not result in any Canadian income tax consequences to the Non-Resident Holder. The Non-Resident Holder will have the same adjusted cost basis in the new notes as they had in the old notes provided that the old notes were capital property to the Non-Resident Holder before the exchange.
CERTAIN ERISA CONSIDERATIONS
The following is a summary of certain considerations associated with the
purchase of the notes by employee benefit plans that are subject to Title I of
the U.S. Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
plans, individual retirement accounts and other arrangements that are subject to
Section 4975 of the Code or provisions under any federal, state, local, non-U.S.
or other laws or regulations that are similar to such provisions of the Code or
ERISA (collectively, "Similar Laws"), and entities whose underlying assets are
considered to include "plan assets" of such plans, accounts and arrangements
(each, a "Plan").
GENERAL FIDUCIARY MATTERS
ERISA and the Code impose certain duties on persons who are fiduciaries of a Plan subject to Title I of ERISA or Section 4975 of the Code and prohibit certain transactions involving the assets of a Plan and its fiduciaries or other interested parties. Under ERISA and the Code, any person who exercises any discretionary authority or control over the administration of such a Plan or the management or disposition of the assets of such a Plan, or who renders investment advice for a fee or other compensation to such a Plan, is generally considered to be a fiduciary of the Plan.
In considering an investment in the notes of a portion of the assets of any Plan, a fiduciary should determine whether the investment is in accordance with the documents and instruments governing the Plan and the applicable provisions of ERISA, the Code or any similar law relating to a fiduciary's duties to the Plan including, without limitation, the prudence, diversification, delegation of control and prohibited transaction provisions of ERISA, the Code and any other applicable Similar Laws
Any insurance company proposing to invest assets of its general account in the notes should consider the extent that such investment would be subject to the requirements of ERISA in light of the U.S. Supreme Court's decision in John Hancock Mutual Life Insurance Co. v. Harris Trust and Savings Bank and under any subsequent legislation or other guidance that has or may become available relating to that decision, including the enactment of Section 401(c) of ERISA by the Small Business Job Protection Act of 1996 and any related regulations.
PROHIBITED TRANSACTION ISSUES
Section 406 of ERISA and Section 4975 of the Code prohibit Plans subject to Title I of ERISA or Section 4975 of the Code from engaging in specified transactions involving plan assets with persons or entities who are "parties in interest," within the meaning of ERISA, or "disqualified persons," within the meaning of Section 4975 of the Code, unless an exemption is available. A party in interest or disqualified person who engaged in a non-exempt prohibited transaction may be subject to excise taxes and other penalties and liabilities under ERISA and the Code. In addition, the fiduciary of the Plan that engaged in such a non-exempt prohibited transaction may be subject to penalties and liabilities under ERISA and the Code. The acquisition and/or holding of notes by a Plan with respect to which we, our affiliates or the initial purchaser is considered a party in interest or a disqualified person may constitute or result in a direct or indirect prohibited transaction under ERISA and/or the Code, unless the investment is acquired and is held in accordance with an applicable statutory, class or individual prohibited transaction exemption. In this regard, the U.S. Department of Labor has issued prohibited transaction class exemptions, or "PTCEs," that may apply to the acquisition and holding of the notes. These class exemptions include PTCE 84-14 respecting transactions determined by independent qualified professional asset managers, PTCE 90-1 respecting insurance company pooled separate accounts, PTCE 91-38 respecting bank collective investment trusts, PTCE 95-60 respecting life insurance company general accounts and PTCE 96-23 respecting transactions determined by in-house asset managers. However, there can be no assurance that all of the conditions of any such exemptions will be satisfied, or, if satisfied, that the scope of the relief will cover all acts which might be construed as prohibited transactions.
Because of the foregoing, the notes should not be purchased or held by any person investing "plan assets" of any Plan, unless such purchase and holding will not constitute a non-exempt prohibited
transaction under ERISA and the Code or similar violation of any applicable Similar Laws whether pursuant to an applicable exemption or otherwise.
The foregoing discussion is general in nature and is not intended to be all inclusive. Due to the complexity of these rules and the penalties that may be imposed upon persons involved in non-exempt prohibited transactions, it is particularly important that fiduciaries, or other persons considering purchasing the notes on behalf of, or with the assets of, any Plan, consult with their counsel regarding the potential applicability of ERISA, Section 4975 of the Code and any similar laws to such investment and whether an exemption would be applicable to the purchase and holding of the notes.
PLAN OF DISTRIBUTION
Each broker-dealer that receives new notes for its own account in the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of the new notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of new notes received in exchange for old notes where the old notes were acquired as a result of market-making activities or other trading activities. We have agreed that for 180 days after the closing of the exchange offer we will make this prospectus, as amended or supplemented, available to any broker-dealer that requests these documents from the Exchange Agent for use in connection with resales of the new notes. In addition, until , 2002, all dealers affecting transactions in the new notes may be required to deliver a prospectus.
We will not receive any proceeds from any sale of new notes by broker-dealers. New notes received by broker-dealers for their own account in the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the new notes or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any resale of the new notes may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer and/or the purchasers of any such new notes. Any broker-dealer that resells new notes that were received by it for its own account in the exchange offer and any broker or dealer that participates in a distribution of the new notes may be deemed to be an "underwriter" within the meaning of the Securities Act. Any profit on any resale of new notes and any commissions or concessions received by any persons deemed to be underwriters may be deemed to be underwriting compensation under the Securities Act. The enclosed letter of transmittal states that by acknowledging that it will deliver and be delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the closing of the exchange offer, we will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests such documents in the letter of transmittal. We have agreed to pay all expenses incident to the exchange offer (including the expenses of one counsel for the holders of the old notes) other than commissions or concessions of any brokers or dealers and will indemnify the holders of the old notes (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.
Following completion of the exchange offer, we may, in our sole discretion, commence one or more additional exchange offers to holders of old notes who did not exchange their old notes for new notes in the exchange offer on terms which may differ from those contained in the prospectus and the enclosed letter of transmittal. This prospectus, as it may be amended or supplemented from time to time, may be used by us in connection with any additional exchange offers. These additional exchange offers may take place from time to time until all outstanding old notes have been exchanged for new notes, subject to the terms and conditions in the prospectus and letter of transmittal distributed by us in connection with these additional exchange offers.
LEGAL AND TAX MATTERS
The legality of the new notes will be passed upon for us by Andrews & Kurth L.L.P., Houston, Texas (concerning matters of U.S. law and U.S. federal income tax law), Ernst & Young LLP, Calgary, Canada (concerning Canadian income tax matters) and McInnes Cooper, Halifax, Nova Scotia (concerning matters of Nova Scotia law).
EXPERTS
The consolidated financial statements of Anadarko Petroleum Corporation and subsidiaries as of December 31, 2000 and 1999, and for each of the years in the three-year period ended December 31, 2000, have been incorporated by reference in this prospectus and elsewhere in the registration statement in reliance upon the report of KPMG LLP, independent certified accountants, which is incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. The report of KPMG LLP covering the December 31, 2000 consolidated financial statements refers to a change in method of accounting for foreign crude oil inventories, effective January 1, 2000.
The consolidated financial statements of Union Pacific Resources Group Inc. and its subsidiaries as of and for the years ended December 31, 1999 and 1998 incorporated by reference in this prospectus and elsewhere in the registration statement have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports with respect thereto, and have been incorporated herein in reliance upon the authority of said firm as experts in giving said report.
With respect to the unaudited interim financial information of Union Pacific Resources Group Inc. and its subsidiaries for the quarter ended March 31, 2000 incorporated by reference in this prospectus and elsewhere in the registration statement, Arthur Andersen LLP has applied limited procedures in accordance with professional standards for a review of that information. However, their separate report thereon states that they did not audit and they do not express an opinion on that interim financial information. Accordingly, the degree of reliance on their report on that information should be restricted in light of the limited nature of the review procedures applied.
Certain excerpts from the consolidated financial statements of Union Pacific Resources Group Inc. and its subsidiaries as of and for the year ended December 31, 1997 incorporated by reference in this prospectus and elsewhere in the registration statement have been audited by Deloitte & Touche LLP, independent public accountants, as indicated in their reports with respect thereto.
[ANADARKO LOGO]
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides for indemnification of officers and directors under certain conditions.
Article IX of the By-Laws of Anadarko provides for indemnification of officers and directors to the fullest extent which may be provided by a by-law under applicable law.
Anadarko maintains insurance for our officers and directors and the officers and directors of Anadarko against certain liabilities, including liabilities under the Securities Act of 1933, under insurance policies, the premiums of which are paid by Anadarko. The effect of these is to indemnify any of our officer(s) or director(s) of Anadarko against expenses, judgments, attorney's fees and other amounts paid in settlements incurred by such officer or director upon a determination that such person acted in good faith.
ITEM 21. EXHIBITS
The following exhibits are filed as part of this Registration Statement:
(1) -- (a) Purchase Agreement, dated April 19, 2001, by and among
Anadarko Finance Company, Anadarko Petroleum Corporation and
Credit Suisse First Boston Corporation.
(b) Purchase Agreement, dated May 16, 2001, by and among
Anadarko Finance Company, Anadarko Petroleum Corporation and
Credit Suisse First Boston Corporation.
(4) -- (a) Indenture, dated as of April 26, 2001, between Anadarko
Finance Company, Anadarko Petroleum Corporation and The Bank
of New York, as Trustee.
(b) Supplemental Indenture, dated as of May 23, 2001, between
Anadarko Finance Company, Anadarko Petroleum Corporation and
The Bank of New York, as Trustee.
(c) Registration Rights Agreement, dated April 26, 2001, by and
among Anadarko Finance Company, Anadarko Petroleum
Corporation and Credit Suisse First Boston Corporation.
(d) Registration Rights Agreement, dated May 23, 2001, by and
among Anadarko Finance Company, Anadarko Petroleum
Corporation and Credit Suisse First Boston Corporation.
(e) Form of Anadarko Finance Company 6 3/4% Series B Senior Note
due 2011 (included in Exhibit 4(a)).
(f) Form of Anadarko Finance Company 7 1/2% Series B Senior Note
due 2031 (included in Exhibit 4(a)).
(5) -- (a) Opinion of U.S. Counsel to Anadarko.*
(b) Opinion of Canadian Counsel to Anadarko.*
(12) -- (a) Computation of Ratio of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and Preferred Stock
Dividends.
(15) -- (a) Awareness Letter of Arthur Andersen LLP.
(23) -- (a) Consent of U.S. Counsel to Anadarko (included in Exhibit
5(a)).*
(b) Consent of Canadian Counsel to Anadarko (included in Exhibit
5(b)).*
(c) Consent of KPMG LLP.
(d) Consent of Arthur Andersen LLP, Fort Worth, Texas.
(e) Consent of Deloitte & Touche LLP.
(24) -- (a) Powers of Attorney (included on signature page).
(25) -- (a) Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, on Form T-1 of The Bank
of New York, as Trustee.
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II-1
(99) -- (a) Form of Letter of Transmittal.
(b) Form of Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.
(c) Form of Notice of Guaranteed Delivery.
(d) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(e) Form of Letter to Clients.
(f) Form of Exchange Agent Agreement.
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* To be filed by amendment.
The total amount of securities of Anadarko authorized under any instrument with respect to long-term debt not filed as an exhibit does not exceed 10% of the total assets of Anadarko and its subsidiaries on a consolidated basis. Anadarko agrees, upon request of the SEC, to furnish copies of any or all of such instruments to the SEC.
ITEM 22. UNDERTAKINGS.
The undersigned registrant 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 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 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) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC 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 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.
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report 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.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to any charter provision, by-law,
II-2
contract, arrangement, statute, or otherwise, the registrant has been advised that in the opinion of the SEC 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 the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted against the registrant by such director, officer or controlling person in connection with the securities being registered, the 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 of 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.
The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning the exchange offer that was not the subject to and included in the registration statement when it became effective.
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under Subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the SEC under Section 305(b)(2) of the Act.
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE REGISTRANT HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED IN THE CITY OF HOUSTON, AND STATE OF TEXAS, ON THE 13TH DAY OF JULY, 2001.
ANADARKO FINANCE COMPANY
By /s/ ROBERT J. ALLISON, JR.
------------------------------------
Robert J. Allison, Jr.
Chairman of the Board
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POWER OF ATTORNEY
EACH PERSON WHOSE SIGNATURE APPEARS BELOW HEREBY CONSTITUTES AND APPOINTS ROBERT J. ALLISON, JR., SUZANNE SUTER AND MICHAEL E. ROSE, AND EACH OF THEM, HIS TRUE AND LAWFUL ATTORNEY-IN-FACT AND AGENT, WITH FULL POWERS OF SUBSTITUTION, FOR HIM AND IN HIS NAME, PLACE AND STEAD, IN ANY AND ALL CAPACITIES, TO SIGN AND TO FILE ANY AND ALL AMENDMENTS, INCLUDING POST-EFFECTIVE AMENDMENTS TO THIS REGISTRATION STATEMENT AND ANY NEW REGISTRATION STATEMENT FILED PURSUANT TO RULE 462 UNDER THE ACT, WITH THE SECURITIES AND EXCHANGE COMMISSION GRANTING TO SAID ATTORNEY-IN-FACT POWER AND AUTHORITY TO PERFORM ANY OTHER ACT ON BEHALF OF THE UNDERSIGNED REQUIRED TO BE DONE IN CONNECTION THEREWITH.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON THE 13TH DAY OF JULY, 2001:
SIGNATURE TITLE
--------- -----
(i) PRINCIPAL EXECUTIVE OFFICERS:
/s/ ROBERT J. ALLISON, JR. Chairman of the Board
---------------------------------------------------
Robert J. Allison, Jr.
/s/ JAMES J. EMME Chief Executive
--------------------------------------------------- Officer and President
James J. Emme
(ii) PRINCIPAL FINANCIAL OFFICER:
/s/ MICHAEL E. ROSE Vice President and
--------------------------------------------------- Chief Financial Officer
Michael E. Rose
(iii) PRINCIPAL ACCOUNTING OFFICER:
/s/ JAMES R. LARSON Vice President and
--------------------------------------------------- Controller
James R. Larson
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SIGNATURES
DIRECTORS:
/s/ ROBERT J. ALLISON JR. /s/ GEORGE LINDAHL III
------------------------------------------- -------------------------------------------
Robert J. Allison Jr. George Lindahl III
/s/ J. STEPHEN MARTIN /s/ JOHN N. SEITZ
------------------------------------------- -------------------------------------------
J. Stephen Martin John N. Seitz
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II-5
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE REGISTRANT HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED IN THE CITY OF HOUSTON, AND STATE OF TEXAS, ON THE 13TH DAY OF JULY, 2001.
ANADARKO PETROLEUM CORPORATION
By /s/ ROBERT J. ALLISON, JR.
------------------------------------
Robert J. Allison, Jr.,
Chairman of the Board
and Chief Executive Officer
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POWER OF ATTORNEY
EACH PERSON WHOSE SIGNATURE APPEARS BELOW HEREBY CONSTITUTES AND APPOINTS ROBERT J. ALLISON, JR., SUZANNE SUTER AND MICHAEL E. ROSE, AND EACH OF THEM, HIS TRUE AND LAWFUL ATTORNEY-IN-FACT AND AGENT, WITH FULL POWERS OF SUBSTITUTION, FOR HIM AND IN HIS NAME, PLACE AND STEAD, IN ANY AND ALL CAPACITIES, TO SIGN AND TO FILE ANY AND ALL AMENDMENTS, INCLUDING POST-EFFECTIVE AMENDMENTS TO THIS REGISTRATION STATEMENT AND ANY NEW REGISTRATION STATEMENT FILED PURSUANT TO RULE 462 UNDER THE ACT, WITH THE SECURITIES AND EXCHANGE COMMISSION GRANTING TO SAID ATTORNEY-IN-FACT POWER AND AUTHORITY TO PERFORM ANY OTHER ACT ON BEHALF OF THE UNDERSIGNED REQUIRED TO BE DONE IN CONNECTION THEREWITH.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON THE 13TH DAY OF JULY, 2001:
SIGNATURE TITLE
--------- -----
(i) PRINCIPAL EXECUTIVE OFFICERS:
/s/ ROBERT J. ALLISON, JR. Chairman of the Board
--------------------------------------------------- and Chief Executive
Robert J. Allison, Jr. Officer
/s/ JOHN N. SEITZ President and Chief
--------------------------------------------------- Operating Officer
John N. Seitz
(ii) PRINCIPAL FINANCIAL OFFICER:
/s/ MICHAEL E. ROSE Executive Vice President,
--------------------------------------------------- Finance and Chief
Michael E. Rose Financial Officer
(iii) PRINCIPAL ACCOUNTING OFFICER:
/s/ JAMES R. LARSON Vice President and
--------------------------------------------------- Controller
James R. Larson
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SIGNATURES
DIRECTORS:
/s/ ROBERT J. ALLISON, JR.
---------------------------------------------------
Robert J. Allison, Jr.
/s/ CONRAD P. ALBERT
---------------------------------------------------
Conrad P. Albert
/s/ LARRY BARCUS
---------------------------------------------------
Larry Barcus
/s/ RONALD BROWN
---------------------------------------------------
Ronald Brown
/s/ JAMES L. BRYAN
---------------------------------------------------
James L. Bryan
/s/ JOHN R. BUTLER, JR.
---------------------------------------------------
John R. Butler, Jr.
/s/ PRESTON M. GEREN III
---------------------------------------------------
Preston M. Geren III
/s/ JOHN R. GORDON
---------------------------------------------------
John R. Gordon
/s/ LAWRENCE M. JONES
---------------------------------------------------
Lawrence M. Jones
/s/ GEORGE LINDAHL III
---------------------------------------------------
George Lindahl III
/s/ JOHN W. PODUSKA, SR.
---------------------------------------------------
John W. Poduska, Sr.
/s/ JEFF D. SANDEFER
---------------------------------------------------
Jeff D. Sandefer
/s/ JOHN N. SEITZ
---------------------------------------------------
John N. Seitz
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------- -----------
(1) -- (a) Purchase Agreement, dated April 19, 2001, by and among
Anadarko Finance Company, Anadarko Petroleum Corporation and
Credit Suisse First Boston Corporation.
(b) Purchase Agreement, dated May 16, 2001, by and among
Anadarko Finance Company, Anadarko Petroleum Corporation and
Credit Suisse First Boston Corporation.
(4) -- (a) Indenture, dated as of April 26, 2001, between Anadarko
Finance Company, Anadarko Petroleum Corporation and The Bank
of New York, as Trustee.
(b) Supplemental Indenture, dated as of May 23, 2001, between
Anadarko Finance Company, Anadarko Petroleum Corporation and
The Bank of New York, as Trustee.
(c) Registration Rights Agreement, dated April 26, 2001, by and
among Anadarko Finance Company, Anadarko Petroleum
Corporation and Credit Suisse First Boston Corporation.
(d) Registration Rights Agreement, dated May 23, 2001, by and
among Anadarko Finance Company, Anadarko Petroleum
Corporation and Credit Suisse First Boston Corporation.
(e) Form of Anadarko Finance Company 6 3/4% Series B Senior Note
due 2011 (included in Exhibit 4(a)).
(f) Form of Anadarko Finance Company 7 1/2% Series B Senior Note
due 2031 (included in Exhibit 4(a)).
(5) -- (a) Opinion of U.S. Counsel to Anadarko.*
(b) Opinion of Canadian Counsel to Anadarko.*
(12) -- (a) Computation of Ratio of Earnings to Fixed Charges and
Earnings to Combined Fixed Charges and Preferred Stock
Dividends.
(15) -- (a) Awareness Letter of Arthur Andersen LLP.
(23) -- (a) Consent of U.S. Counsel to Anadarko (included in Exhibit
5(a)).*
(b) Consent of Canadian Counsel to Anadarko (included in Exhibit
5(b)).*
(c) Consent of KPMG LLP.
(d) Consent of Arthur Andersen LLP, Fort Worth, Texas.
(e) Consent of Deloitte & Touche LLP.
(24) -- (a) Powers of Attorney (included on signature page).
(25) -- (a) Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, on Form T-1 of The Bank
of New York, as Trustee.
(99) -- (a) Form of Letter of Transmittal.
(b) Form of Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9.
(c) Form of Notice of Guaranteed Delivery.
(d) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(e) Form of Letter to Clients.
(f) Form of Exchange Agent Agreement.
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* To be filed by amendment.
The total amount of securities of Anadarko authorized under any instrument with respect to long-term debt not filed as an exhibit does not exceed 10% of the total assets of Anadarko and its subsidiaries on a consolidated basis. Anadarko agrees, upon request of the SEC, to furnish copies of any or all of such
instruments to the SEC.
EXHIBIT 1(a)
U.S.$1,300,000,000 AGGREGATE PRINCIPAL AMOUNT
ANADARKO FINANCE COMPANY
SENIOR DEBT SECURITIES, DUE 2011 AND 2031
ALL OBLIGATIONS FULLY AND UNCONDITIONALLY GUARANTEED
BY ANADARKO PETROLEUM CORPORATION
PURCHASE AGREEMENT
APRIL 19, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Anadarko Finance Company, an unlimited liability company organized under the laws of the province of Nova Scotia, Canada (the "COMPANY"), proposes, subject to the terms and conditions stated herein, to issue and sell to Credit Suisse First Boston Corporation (the initial "PURCHASER") U.S.$1,300,000,000 principal amount of its Senior Debt Securities in the series, principle amounts and terms shown on Exhibit A attached hereto ("NOTES"), to be issued under an indenture to be dated as of April 26, 2001 (the "INDENTURE") between the Company and The Bank of New York, as Trustee in a private placement basis pursuant to an exemption under Section 4(2) of the Securities Act of 1933 (the "SECURITIES ACT"), to be fully and unconditionally guaranteed by Anadarko Petroleum Corporation, a Delaware corporation ("ANADARKO") in accordance with the terms of the Indenture. Such guarantees are referred to as the "GUARANTEES" and the Notes and the Guarantees are collectively referred to as the "OFFERED SECURITIES". Each of the Company and Anadarko hereby agrees with the Purchaser as follows:
2. Representations and Warranties of the Company and Anadarko. The Company and Anadarko jointly and severally represent and warrant to, and agree with, the Purchaser that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities have been prepared by the Company.
Such preliminary offering circular (the "PRELIMINARY OFFERING
CIRCULAR") and offering circular (the "OFFERING CIRCULAR"), as amended
or supplemented, together with the documents incorporated by reference
therein, are hereinafter collectively referred to as the "OFFERING
DOCUMENT". The Offering Document does not, and will not as of the
Closing Date, include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The preceding sentence does not apply to statements in
or omissions from the Offering Document based upon written information
furnished to the Company and Anadarko by Credit Suisse First Boston
Corporation ("CSFBC") specifically for use therein, it being understood
and agreed that the only such information is that described as such in
Section 7(b) hereof. The documents incorporated in the Offering
Circular, when they became effective or were filed with the Securities
and Exchange Commission (the "COMMISSION") and all subsequent reports
(collectively, the "EXCHANGE ACT REPORTS") which have been filed by
Anadarko with the Commission or sent to shareholders pursuant to the
Securities Exchange Act of 1934 (the "EXCHANGE ACT") did not include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference or deemed to
be incorporated by reference in the Offering Circular, when such
documents are filed with the Commission will conform in all material
respects to the requirements of the
Exchange Act and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. Such documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(b) Anadarko has been duly incorporated and is an existing corporation in good standing under the laws of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Offering Document; and Anadarko is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on Anadarko and its subsidiaries taken as a whole.
(c) The Company has been duly organized and is an existing unlimited liability company in good standing under the laws of the of province of Nova Scotia, with corporate power and authority to own its properties and conduct its business as described in the Offering Document.
(d) The Company owns no equity interest in any other corporation.
(e) The Indenture has been duly authorized by the Company and Anadarko and (assuming due authorization, execution and delivery thereof by the Trustee) when executed and delivered by the Company and Anadarko will constitute a valid and binding agreement of the Company and Anadarko enforceable against the Company and Anadarko in accordance with its terms, except to the extent enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws now or hereafter in effect relating to or affecting creditors' rights generally and general principles of equity (whether enforcement is sought in equity or at law); and the Indenture conforms in all material respects to the description thereof contained in the Offering Circular.
(f) The Registration Rights Agreement, to be dated the Closing Date, between the Company, Anadarko and the Purchaser (the "REGISTRATION RIGHTS AGREEMENT") has been duly authorized by the Company and Anadarko; when the Registration Rights Agreement is duly executed and delivered by the Company and Anadarko, assuming due authorization, execution and delivery by the Purchaser, it will be a valid and binding agreement of the Company and Anadarko enforceable against the Company and Anadarko in accordance with its terms, except to the extent enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws now or hereafter in effect relating to or affecting creditors' rights generally and general principles of equity (whether enforcement is sought in equity or at law) and except with respect to the rights of indemnification and contribution thereunder, which enforcement thereof may be limited by federal or state securities laws or the policies underlying such laws; and the Registration Rights Agreement conforms in all material respects to the description thereof contained in the Offering Circular.
(g) The Notes and Guarantees have been duly authorized for issuance and sale by the Company and Anadarko, as the case may be, pursuant to this Agreement (or will have been so authorized prior to each issuance of Offered Securities) and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and of the Indenture against payment of the consideration thereof in accordance with this Agreement, the Offered Securities will be valid and binding obligations of the Company and Anadarko enforceable against the Company and Anadarko and entitled to the benefits of the Indenture, except to the extent the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, and general principles of equity (whether enforcement is sought in equity or at law); and the Notes and Guarantees conform in all material respects to the description thereof contained in the Offering Circular.
(h) The execution, delivery and performance of the Indenture, this Agreement and the Registration Rights Agreement, and the issuance and sale of the Offered Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under the organizational documents of Anadarko and the Company or, except for any such
breach, violation or default that would not have a material adverse effect on Anadarko and its subsidiaries taken as a whole, any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company, Anadarko or any of their properties, or any agreement or instrument to which the Company or Anadarko is a party or by which the Company or Anadarko is bound or to which any of the properties of the Company or Anadarko is subject, and the Company and Anadarko have full corporate power and authority to authorize, issue and sell the Offered Securities as contemplated by this Agreement.
(i) Anadarko and its subsidiaries possess such valid franchises, certificates of convenience and necessity, easements, rights-of-way, operating rights, licenses, permits, consents, authorizations and orders of governmental political subdivisions or regulatory authorities as, in the opinion of Anadarko, are necessary to carry on the respective businesses of each as described in the Offering Circular, except where the failure to possess such would not individually or in the aggregate have a material adverse effect on the condition (financial or other), business, properties or results of operations of Anadarko and its subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT").
(j) Except as disclosed in the Offering Document, since the date of the latest audited financial statements included in the Offering Document there has been no material adverse change in the condition (financial or other), business, properties or results of operations of Anadarko and its subsidiaries taken as a whole.
(k) Except as disclosed in the Offering Document and except for the registration rights agreement entered into in connection with the ZYP-CODES, there are no contracts, agreements or understandings between Anadarko or any of its affiliates and any person granting such person the right to require Anadarko or any of its affiliates to file a registration statement under the Securities Act with respect to any securities of Anadarko or any of its affiliates owned or to be owned by such person or to require Anadarko or any of its affiliates to include such securities in the securities registered pursuant to the Registration Rights Agreement or in any securities being registered pursuant to any other registration statement filed by Anadarko or any of its affiliates under the Securities Act.
(l) Except (i) with respect to the transactions contemplated by the Registration Rights Agreement, as may be required under the Securities Act and the Trust Indenture Act and (ii) as required by the securities or "blue sky" laws of any jurisdiction in connection with the purchase and distribution of the Offered Securities by the Purchaser, no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Indenture and the Registration Rights Agreement (the "OPERATIVE DOCUMENTS") by the Company and Anadarko and the consummation of the transactions contemplated hereby and thereby.
(m) The Company and Anadarko are not, and upon application of the net proceeds from the sale of the Offered Securities as set forth in the Offering Circular, will not be, an "investment company" within the meaning of such term under the Investment Company Act of 1940, as amended, and the rules and regulations thereunder (the "INVESTMENT COMPANY ACT").
(n) Assuming the accuracy of the representations and warranties of the Purchaser contained in Section 4 and its compliance with the agreements set forth therein, it is not necessary, in connection with the issuance and sale of the Offered Securities to the Purchaser, the offer, resale and delivery of the Offered Securities by the Purchaser, in each case, in the manner contemplated by this Agreement, the Indenture and the Offering Circular, to register the Offered Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act of 1939, as amended, and the rules and regulations thereunder (collectively, the "TRUST INDENTURE ACT").
(o) None of Anadarko or any of its affiliates (other than the Purchaser in connection with the transactions contemplated by this Agreement about which no representation is made by the Company or Anadarko) has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any "security" (as defined in the Securities Act) which is or will be integrated with
the sale of the Offered Securities in a manner that would require the registration under the Securities Act of the Offered Securities.
(p) No securities of the same class (within the meaning of Rule 144A(d)(3) under the Securities Act) as the Notes or Guarantees are listed on any national securities exchange registered under Section 6 of the Exchange Act or quoted on an automated inter-dealer quotation system.
(q) None of Anadarko or any of its affiliates (as defined in Rule 501(b) of Regulation D under the Securities Act ("REGULATION D")), has, directly or through an agent, engaged in any form of general solicitation or general advertising in connection with the offering of the Offered Securities (as those terms are used in Regulation D) under the Securities Act or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and the Company and Anadarko have not entered into any contractual arrangement with respect to the distribution of the Offered Securities except for this Agreement and the Company and Anadarko will not enter into any such arrangement.
(r) None of Anadarko, its affiliates or any person acting on its or their behalf (other than the Purchaser in connection with this Agreement) has engaged or will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Offered Securities and each of Anadarko and its affiliates and any person acting on its or their behalf (other than the Purchaser in connection with this Agreement) has complied and will comply with the offering restrictions requirement of Regulation S.
(s) The Company is not subject to Section 13 or 15(d) of the Exchange Act.
(t) There is no "substantial U.S. market interest" as defined in Rule 902(n) of Regulation S in the Company's debt securities.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to sell to the Purchaser, and the Purchaser agrees to purchase from the Company, at a purchase price equal to a percentage of the principal amount thereof plus accrued interest as reflected on Exhibit A hereto, and the Company agrees to pay CSFBC, as Purchaser, a fee as set forth in the cross-receipt executed by each of the parties hereto.
The Company and Anadarko will deliver against payment of the purchase price the Offered Securities in the form of one or more permanent global securities in definitive form (the "GLOBAL SECURITIES") deposited with the Trustee as custodian for The Depository Trust Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC. Interests in any permanent Global Securities will be held only in book-entry form through DTC, except in the limited circumstances described in the Offering Document. Payment for the Offered Securities shall be made by the Purchaser in Federal (same day) funds by wire transfer to an account at a bank acceptable to CSFBC drawn to the order of the Company at the office of Hughes Hubbard & Reed LLP, One Battery Park Plaza, New York, N.Y. at 9 A.M. (New York time), on April 26, 2001, or at such other time, not later than seven full business days thereafter, as CSFBC and Anadarko determine, such time being herein referred to as the "CLOSING DATE", against delivery to the Trustee as custodian for DTC of the Global Securities representing all of the Offered Securities. The Global Securities will be made available for checking at the office of CSFBC at least 24 hours prior to the Closing Date.
4. Representations by Purchaser; Resale by Purchaser. (a) The Purchaser represents and warrants to Anadarko and the Company that it is an "accredited investor" within the meaning of Regulation D under the Securities Act.
(b) The Purchaser acknowledges that the Offered Securities have not been registered under the Securities Act and may not be offered or sold within the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. The Purchaser represents and agrees that it has not offered or sold, and will not offer or sell, any Offered Securities within the United States, except in accordance with Rule 144A or Rule 903 under the Securities Act. Accordingly, neither the Purchaser nor its affiliates, nor any persons acting on its or their behalf, have engaged or will engage in any
directed selling efforts with respect to the Offered Securities. Terms used in this subsection (b) have the meanings given to them by Regulation S.
(c) The Purchaser agrees that it and each of its affiliates has not entered and will not enter into any contractual arrangement with respect to the distribution of the Offered Securities except with the prior written consent of Anadarko.
(d) The Purchaser agrees that it and each of its affiliates will not offer or sell the Offered Securities by means of any form of general solicitation or general advertising, within the meaning of Rule 502(c) under the Securities Act, including, but not limited to (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. The Purchaser agrees, with respect to resales made in reliance on Rule 144A of any of the Offered Securities, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the effect that the resale of such Offered Securities has been made in reliance upon the exemption from the registration requirements of the Securities Act provided by Rule 144A.
5. Certain Agreements of the Company and Anadarko. Each of the Company and Anadarko agrees with the Purchaser that:
(a) Anadarko will advise CSFBC promptly of any proposal to amend or supplement the Offering Document. If, at any time prior to the completion of the resale of the Offered Securities by the Purchaser any event occurs as a result of which the Offering Document as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, Anadarko and the Company promptly will notify CSFBC of such event and promptly will prepare, at their own expense, an amendment or supplement which will correct such statement or omission.
(b) Anadarko will furnish to CSFBC copies of any Preliminary Offering Circular, the Offering Document and all amendments and supplements to such documents, in each case as soon as available and in such quantities as CSFBC requests. At any time when Anadarko is not subject to Section 13 or 15(d) of the Exchange Act, Anadarko will promptly furnish or cause to be furnished to CSFBC and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. Anadarko will pay the expenses of printing and distributing to CSFBC all such documents.
(c) Anadarko will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such states in the United States as CSFBC designates and will continue such qualifications in effect so long as required for the resale of the Offered Securities by the Purchaser, provided that Anadarko and the Company will not be required to qualify as a foreign corporation or otherwise subject itself to a general consent to service of process or taxation in any jurisdiction in which it is not otherwise so qualified or subject.
(d) During the period of five years hereafter, Anadarko will furnish to CSFBC, as soon as practicable after the end of each fiscal year, a copy of Anadarko's annual report to shareholders for such year; and Anadarko will furnish to CSFBC (i) as soon as available, a copy of each report and any definitive proxy statement of Anadarko filed with the Commission under the Exchange Act or mailed to shareholders ; provided, however, that Anadarko shall not be required to provide the Purchaser with any such reports or similar forms that have been filed with the Commission by electronic transmission pursuant to EDGAR.
(e) During the period of two years after the Closing Date, Anadarko will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them.
(f) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable the Exchange Securities; (iii) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions as CSFBC designates and the printing of memoranda relating thereto, (iv) any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities and (v) expenses incurred in distributing preliminary offering circulars and the Offering Document (including any amendments and supplements thereto) to the Purchaser. The Company will reimburse the Purchaser for all travel expenses of the Purchaser and the Company's officers and employees and any other expenses of the Purchaser and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities.
(g) In connection with the offering, until CSFBC shall have notified Anadarko of the completion of the resale of the Offered Securities, neither Anadarko nor any of its affiliates has or will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither Anadarko nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(h) For a period ending on June 1, 2001, the Company and Anadarko will not issue or cause to be issued senior debt securities having a maturity of 10 years or more, other than:
o the notes offered hereby;
o any debt securities similar to the notes offered hereby and issued in exchange therefore;
o Zero Yield Puttable Contingent Debt Securities due 2021 issued in exchange for similar debt securities issued by Anadarko on March 13, 2001; or
o any debt securities that are convertible into equity securities.
(i) The Company and Anadarko will indemnify and hold harmless the Purchaser against any documentary, stamp or similar issuance tax, including any interest and penalties, on the creation, issuance and sale of the Offered Securities and on the execution and delivery of this Agreement. All payments to be made by the Company and Anadarko hereunder shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Company or Anadarko is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Company shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made.
6. Conditions of the Obligation of the Purchaser. The obligation of the Purchaser to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the Company and Anadarko herein, to the accuracy of the statements of officers of the Company and Anadarko made pursuant to the provisions hereof, to the performance by the Company and Anadarko of its obligations hereunder and to the following additional conditions precedent:
(a) The Purchaser shall have received a letter, dated the Closing Date, of KPMG LLP confirming that they are independent public accountants with respect to Anadarko within the meaning of the
Securities Act and the applicable published rules and regulations thereunder ("RULES AND REGULATIONS") and to the effect that:
(i) in their opinion the financial statements examined by them and included in the Offering Document and in the Exchange Act Reports comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the applicable published rules and regulations thereunder; and
(ii) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 71, Interim Financial Information, on the unaudited financial statements included in the Exchange Act Reports; and stating the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountant's "comfort letters" to underwriters in connection with registered public offerings, in form and substance satisfactory to the Purchaser.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any material adverse change in the condition, financial or otherwise, of Anadarko and its subsidiaries taken as a whole, or in the earnings, business or operations of Anadarko and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, or (ii) any new outbreak of hostilities or other calamity or crisis the effect of which on the financial markets of the United States is such as to make it, in the reasonable judgment of the CSFBC, impracticable to market the Offered Securities or enforce contracts for the sale of Offered Securities, or (iii) trading generally on either the American Stock Exchange or the New York Stock Exchange has been suspended, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required, by either of such exchanges or by order of the Commission or any other governmental authority, or a banking moratorium has been declared by either federal or New York authorities. In the event of any such termination, the provisions of Sections 5(f), 6, 7 and 8 shall remain in effect.
(c) The Purchaser shall have received an opinion, dated Closing Date, as follows:
(i) from Andrews & Kurth LLP, as counsel to the Company, its written opinion, addressed to the Purchaser, in substantially the form delivered in the ZYP-CODES transaction, but with respect to the Offered Securities.
(ii) from the General Counsel or an Assistant General Counsel of the Company, his written opinion addressed to the Purchaser, in substantially the form delivered in the ZYP-CODES transaction, but with respect to the Offered Securities.
(iii) from McInnes Cooper, as Canadian counsel to the Company, its written opinion addressed to the Purchaser, in a form reasonably satisfactory to the Purchaser.
(iv) from Hughes Hubbard & Reed LLP, as counsel to the Purchaser, its written opinion addressed to the Purchaser, in substantially the form delivered in the ZYP-CODES transaction, but with respect to the Offered Securities.
(d) The Purchaser shall have received a certificate, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Company and Anadarko in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company and Anadarko in this Agreement are true and correct, that the Company and Anadarko have complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, and that, subsequent to the date of the most recent financial statements in the Exchange Act Reports there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business,
properties or results of operations of Anadarko and its subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificate.
(e) Each of the Company and Anadarko shall have duly executed the Operative Documents to which it is a party and delivered such Operative Documents to the Purchaser in form and substance reasonably satisfactory to the Purchaser.
The Company and Anadarko will furnish the Purchaser with such conformed copies of such opinions, certificates, letters and documents as the Purchaser reasonably request. CSFBC may in its sole discretion waive on behalf of the Purchaser compliance with any conditions to the obligations of the Purchaser hereunder.
7. Indemnification and Contribution. (a) The Company and Anadarko,
jointly and severally, agree to indemnity and hold harmless the Purchaser and
each person, if any, who controls the Purchaser within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act from and against any
and all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Preliminary
Offering Circular or the Offering Circular (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to the Purchaser furnished to the Company in writing
by the Purchaser expressly for use therein.
The foregoing indemnity with respect to any untrue statement contained in or omission from the Preliminary Offering Circular shall not inure to the benefit of the Purchaser (or any person controlling the Purchaser) from whom the person asserting any such loss, liability, claim or damages purchased in the initial resale any of the Offered Securities which are the subject thereof if the untrue statement contained in or omission from the Preliminary Offering Circular was corrected in the Offering Circular (or any amendment or supplement thereto) but such person did not receive a copy of such Offering Circular (or any amendment or supplement thereto), excluding documents incorporated therein, at or prior to confirmation of the sale of such Offered Securities to such person, unless such failure to receive a copy or such amendment or supplement resulted from non-compliance by the Company with Sections 5(a) or (b) hereof.
(b) The Purchaser agrees to indemnify and hold harmless the Company, Anadarko and each person, if any, who controls the Company and Anadarko within the meaning of either Section 15 and their respective officers and directors of the 1933 Act or Section 20 of the 1934 Act to the same extent as the foregoing indemnity from the Company and Anadarko to the Purchaser, but only with reference to information relating to the Purchaser furnished to the Company in writing by the Purchaser expressly for use in the Preliminary Offering Circular, the Offering Circular or any amendments or supplements thereto, it being understood and agreed that the only such information furnished by the Purchaser consists of the second and third sentences of the eighth paragraph under the caption "Plan of Distribution in the Offering Circular" and the ninth paragraph thereof.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (a) the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Purchaser, in the case of parties indemnified pursuant to Section 7(a), and by Anadarko, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and Anadarko on the one hand and the Purchaser on the other hand from the offering of the Offered Securities or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company and Anadarko on the one hand and of the Purchaser on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and Anadarko on the one hand and the Purchaser on the other hand in connection with the offering of the Offered Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Offered Securities (before deducting expenses) received by the Company and Anadarko and the total underwriting discounts and commissions received by the Purchaser, in each case as set forth in Exhibit A, and in the cross receipt, bear to the aggregate offering price of the Offered Securities. The relative fault of the Company and Anadarko on the one hand and the Purchaser on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and Anadarko or by the Purchaser and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) The Company and Anadarko and the Purchaser agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7, the Purchaser shall not be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities purchased by it and distributed to the public were offered to the public exceeds the amount of any damages that the Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the Company and Anadarko contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Purchaser or any person controlling the Purchaser or by or on behalf of the Company or Anadarko, or their officers or directors or any person controlling the Company or Anadarko and (iii) acceptance of and payment for any of the Offered Securities.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers, Anadarko and its officers and of the Purchaser set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of the Purchaser, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If for any reason the
purchase of the Offered Securities by the Purchaser is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company and the
Purchaser pursuant to Section 7 shall remain in effect. If the purchase of the
Offered Securities by the Purchaser is not consummated for any reason other than
solely because of the occurrence of any event specified in clause (iii) of
Section 6(b), the Company will reimburse the Purchaser for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by it
in connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Purchaser will be mailed, delivered or telegraphed and confirmed to
the Purchaser at Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention:
Transactions Advisory Group, or, if sent to the Company or Anadarko, will be
mailed, delivered or telegraphed and confirmed to it at 17001 Northchase Drive,
Houston, Texas, 77060, Attention: Vice President and Treasurer.
10. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the controlling persons referred to in Section 7, and no other person will have any right or obligation hereunder, except that holders of Offered Securities shall be entitled to enforce the agreements for their benefit contained in the second and third sentences of Section 5(b) hereof against the Company as if such holders were parties hereto.
11. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
If the foregoing is in accordance with the Purchaser's understanding of our agreement, kindly sign and return to each of the Company and Anadarko one of the counterparts hereof, whereupon it will become a binding agreement by and among the Company, Anadarko and the Purchaser in accordance with its terms.
Very truly yours,
ANADARKO FINANCE COMPANY
By: /s/ ALBERT L. RICHEY Treasurer |
ANADARKO PETROLEUM CORPORATION
By: /s/ ALBERT L. RICHEY Vice President and Treasurer |
The foregoing Purchase Agreement is hereby confirmed and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ ROME ARNOLD [Insert title] Managing Director |
EXHIBIT A
SELECT TERMS AND CONDITIONS: $1,300 MILLION
10 AND 30-YEAR SENIOR DEBT SECURITIES
------------------------------- ----------------------- -------------------------- --------------------------
MATURITY PRINCIPAL AMOUNT PRICE TO PURCHASER PRICE TO THE PUBLIC
(% of Principal Amount) (% of Principal Amount)
------------------------------- ----------------------- -------------------------- --------------------------
10-Year: May 1, 2011 US$400,000,000 99.819% 99.819%
------------------------------- ----------------------- -------------------------- --------------------------
30-Year: May 1, 2031 US$900,000,000 99.091% 99.091%
------------------------------- ----------------------- -------------------------- --------------------------
|
EXHIBIT 1(b)
U.S.$550,000,000 AGGREGATE PRINCIPAL AMOUNT
ANADARKO FINANCE COMPANY
6 3/4% SENIOR NOTES DUE 2011
ALL OBLIGATIONS FULLY AND UNCONDITIONALLY GUARANTEED
BY ANADARKO PETROLEUM CORPORATION
PURCHASE AGREEMENT
MAY 16, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, N.Y. 10010-3629
Ladies and Gentlemen:
1. Introductory. Anadarko Finance Company, an unlimited liability company organized under the laws of the province of Nova Scotia, Canada (the "COMPANY"), proposes, subject to the terms and conditions stated herein, to issue and sell to Credit Suisse First Boston Corporation (the initial "PURCHASER") U.S.$550,000,000 aggregate principal amount of its 6 3/4% Senior Notes due 2011 on the terms shown on Exhibit A attached hereto ("NOTES"), to be issued under an indenture, dated as of April 26, 2001, as amended by a supplemental indenture to be dated as of the closing of this transaction (the "INDENTURE"), between the Company and The Bank of New York, as Trustee, on a private placement basis pursuant to an exemption under Section 4(2) of the Securities Act of 1933 (the "SECURITIES ACT"), to be fully and unconditionally guaranteed by Anadarko Petroleum Corporation, a Delaware corporation ("ANADARKO") in accordance with the terms of the Indenture. Such guarantees are referred to as the "GUARANTEES" and the Notes and the Guarantees are collectively referred to as the "OFFERED SECURITIES". Each of the Company and Anadarko hereby agrees with the Purchaser as follows:
2. Representations and Warranties of the Company and Anadarko. The Company and Anadarko jointly and severally represent and warrant to, and agree with, the Purchaser that:
(a) An offering circular relating to the Offered Securities has been prepared by the Company. Such offering circular (the "OFFERING CIRCULAR"), as amended or supplemented, together with the documents incorporated by reference therein, is hereinafter referred to as the "OFFERING DOCUMENT". The Offering Document does not, and will not as of the Closing Date, include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Offering Document based upon written information furnished to the Company and Anadarko by the Purchaser specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 7(b) hereof. The documents incorporated in the Offering Circular, when they were filed with the Securities and Exchange Commission (the "COMMISSION") and all subsequent reports (collectively, the "EXCHANGE ACT REPORTS") which have been filed by Anadarko with the Commission or sent to shareholders pursuant to the Securities Exchange Act of 1934 (the "EXCHANGE ACT") did not include any untrue statement of a material
fact
or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference or deemed to be incorporated by reference in the Offering Circular, when such documents are filed with the Commission will conform in all material respects to the requirements of the Exchange Act and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. Such documents, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(b) Anadarko has been duly incorporated and is an existing corporation in good standing under the laws of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Offering Document; and Anadarko is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on Anadarko and its subsidiaries taken as a whole.
(c) The Company has been duly organized and is an existing unlimited liability company in good standing under the laws of the province of Nova Scotia, with corporate power and authority to own its properties and conduct its business as described in the Offering Document.
(d) Each significant subsidiary of Anadarko within the meaning of Regulation S-X (a "SIGNIFICANT SUBSIDIARY") that is a corporation is a duly incorporated and validly existing corporation in good standing under the laws of its jurisdiction of incorporation, and each Significant Subsidiary that is a limited liability company is duly organized and validly existing under the laws of its jurisdiction of organization, in each case with full power and authority to own, lease and operate its properties and conduct its business as described in the Offering Document. Each Significant Subsidiary is duly qualified or licensed to do business as a foreign corporation or other applicable entity in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification or licensing, except to the extent that the failure to be so qualified or licensed or be in good standing would not have a material adverse effect on Anadarko and its subsidiaries taken as a whole. The issued and outstanding common stock of each Significant Subsidiary has been duly authorized and validly issued and is fully paid and non-assessable, except as disclosed in the Offering Document, and is owned by Anadarko free and clear of any mortgages, liens or similar encumbrances.
(e) The Company owns no equity interest in any other corporation.
(f) The Indenture has been duly authorized by the Company and Anadarko and (assuming due authorization, execution and delivery thereof by the Trustee) when executed and delivered by the Company and Anadarko will constitute a valid and binding agreement of the Company and Anadarko enforceable against the Company and Anadarko in accordance with its terms, except to the extent enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws now or hereafter in effect relating to or affecting creditors' rights generally and general principles of equity (whether enforcement is sought in equity or at law); and the Indenture conforms in all material respects to the description thereof contained in the Offering Circular.
(g) The Registration Rights Agreement, to be dated the Closing Date, between the Company, Anadarko and the Purchaser (the "REGISTRATION RIGHTS AGREEMENT") has been duly authorized by the Company and Anadarko; when the Registration Rights Agreement is duly executed and delivered by the Company and Anadarko, assuming due authorization, execution and delivery by the Purchaser, it will be a valid and binding agreement of the Company and Anadarko enforceable against the Company and Anadarko in accordance with its terms, except to the extent enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws now or hereafter in effect relating to or affecting creditors' rights generally and general principles of equity (whether enforcement is sought in equity or at law) and except with respect to the rights of indemnification and contribution thereunder, which enforcement thereof may be limited by federal or state securities laws or the policies underlying such laws; and the Registration Rights Agreement conforms in all material respects to the description thereof contained in the Offering Circular.
(h) The Notes and Guarantees have been duly authorized for issuance and sale by the Company and Anadarko, as the case may be, pursuant to this Agreement (or will have been so authorized prior to each
issuance of Offered Securities) and, when issued, authenticated and delivered pursuant to the provisions of this Agreement and of the Indenture against payment of the consideration thereof in accordance with this Agreement, the Offered Securities will be valid and binding obligations of the Company and Anadarko enforceable against the Company and Anadarko and entitled to the benefits of the Indenture, except to the extent enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, and general principles of equity (whether enforcement is sought in equity or at law); and the Notes and Guarantees conform in all material respects to the description thereof contained in the Offering Circular.
(i) This Agreement has been duly authorized, executed and delivered by the Company and Anadarko and constitutes a valid and binding agreement of the Company and Anadarko.
(j) Neither Anadarko nor any Significant Subsidiary is in violation of its certificate of incorporation or by-laws or, in the case of a limited liability company, its organizational documents, and Anadarko is not in default in the performance or observance of any obligation in any indenture, mortgage, evidence of indebtedness or similar agreement or instrument to which it is a party or by which it or any of its properties may be bound, which default would have a material adverse effect on Anadarko and its subsidiaries taken as a whole. The execution and delivery of this Agreement and the Indenture and the consummation of the transactions contemplated herein and therein and the incurrence of the obligations herein and therein set forth, have been or will be duly authorized by all necessary corporate action. The execution, delivery and performance of the Indenture, this Agreement and the Registration Rights Agreement, the issuance and sale of the Offered Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under the organizational documents of Anadarko and the Company or, except for any such breach, violation or default that would not have a material adverse effect on Anadarko and its subsidiaries taken as a whole, any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company, Anadarko or any of their properties, or any agreement or instrument to which the Company or Anadarko is a party or by which the Company or Anadarko is bound or to which any of the properties of the Company or Anadarko is subject, and the Company and Anadarko have full corporate power and authority to authorize, issue and sell the Offered Securities as contemplated by this Agreement.
(k) The accountants who certified the financial statements included or incorporated in the Offering Document are independent public accountants as required by the Securities Act and the regulations, thereunder.
(l) The consolidated financial statements, together with related schedules and notes, included or incorporated in the Offering Document present fairly the consolidated financial position of Anadarko and its subsidiaries as of the dates indicated and the results of their operations and the changes in their financial position for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles consistently applied during the period, except as stated therein.
(m) Since the respective dates as of which information is given or incorporated by reference in the Offering Document, except as otherwise stated therein or contemplated thereby, there has been (A) no material adverse change in the condition, financial or otherwise, of Anadarko and its subsidiaries taken as a whole and (B) no litigation or governmental proceeding instituted or, to the knowledge of Anadarko, threatened against Anadarko or any subsidiary which would reasonably be expected to have any material adverse effect on the financial condition of Anadarko and its subsidiaries taken as a whole.
(n) Anadarko and its subsidiaries possess such valid franchises, certificates of convenience and necessity, easements, rights-of-way, operating rights, licenses, permits, consents, authorizations and orders of governmental political subdivisions or regulatory authorities as, in the opinion of Anadarko, are necessary to carry on the respective businesses of each as described in the Offering Circular, except where the failure to possess such would not individually or in the aggregate have a material adverse effect on the condition (financial or other), business, properties or results of operations of Anadarko and its subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT").
(o) Except as disclosed in the Offering Document and except for the registration rights agreements entered into in connection with the ZYP-CODES and the 6 3/4% Senior Notes due 2011 and 7 1/2% Senior Notes due 2031 issued by the Company, there are no contracts, agreements or understandings between Anadarko or any of its affiliates and any person granting such person the right to require Anadarko or any of its affiliates to file a registration statement under the Securities Act with respect to any securities of Anadarko or any of its affiliates owned or to be owned by such person or to require Anadarko or any of its affiliates to include such securities in the securities registered pursuant to the Registration Rights Agreement or in any securities being registered pursuant to any other registration statement filed by Anadarko or any of its affiliates under the Securities Act.
(p) Except (i) with respect to the transactions contemplated by the Registration Rights Agreement, as may be required under the Securities Act and the Trust Indenture Act and (ii) as required by the securities or "blue sky" laws of any jurisdiction in connection with the purchase and distribution of the Offered Securities by the Purchaser, no consent, approval, authorization or order of, or filing or registration with, any court or governmental agency or body is required for the execution, delivery and performance of this Agreement, the Indenture and the Registration Rights Agreement (the "OPERATIVE DOCUMENTS") by the Company and Anadarko and the consummation of the transactions contemplated hereby and thereby.
(q) The Company and Anadarko are not, and upon application of the net proceeds from the sale of the Offered Securities as set forth in the Offering Circular, will not be, an "investment company" within the meaning of such term under the Investment Company Act of 1940, as amended, and the rules and regulations thereunder (the "INVESTMENT COMPANY ACT").
(r) Assuming the accuracy of the representations and warranties of the Purchaser contained in Section 4 and its compliance with the agreements set forth therein, it is not necessary, in connection with the issuance and sale of the Offered Securities to the Purchaser, the offer, resale and delivery of the Offered Securities by the Purchaser, in each case, in the manner contemplated by this Agreement, the Indenture and the Offering Circular, to register the Offered Securities under the Securities Act or to qualify the Indenture under the Trust Indenture Act of 1939, as amended, and the rules and regulations thereunder (collectively, the "TRUST INDENTURE ACT").
(s) None of Anadarko or any of its affiliates (other than the Purchaser in connection with the transactions contemplated by this Agreement about which no representation is made by the Company or Anadarko) has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any "security" (as defined in the Securities Act) which is or will be integrated with the sale of the Offered Securities in a manner that would require the registration under the Securities Act of the Offered Securities.
(t) No securities of the same class (within the meaning of Rule 144A(d)(3) under the Securities Act) as the Notes or Guarantees are listed on any national securities exchange registered under Section 6 of the Exchange Act or quoted on an automated inter-dealer quotation system.
(u) None of Anadarko or any of its affiliates (as defined in Rule 501(b) of Regulation D under the Securities Act ("REGULATION D")), has, directly or through an agent, engaged in any form of general solicitation or general advertising in connection with the offering of the Offered Securities (as those terms are used in Regulation D) under the Securities Act or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and the Company and Anadarko have not entered into any contractual arrangement with respect to the distribution of the Offered Securities except for this Agreement and the Company and Anadarko will not enter into any such arrangement.
(v) None of Anadarko, its affiliates or any person acting on its or their behalf (other than the Purchaser in connection with this Agreement) has engaged or will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Offered Securities and each of Anadarko and its affiliates and any person acting on its or their behalf (other than the Purchaser in connection with this Agreement) has complied and will comply with the offering restrictions requirement of Regulation S.
(w) The Company is not subject to Section 13 or 15(d) of the Exchange Act.
(x) There is no "substantial U.S. market interest" as defined in Rule 902(n) of Regulation S in the Company's debt securities.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to sell to the Purchaser, and the Purchaser agrees to purchase from the Company, at a purchase price equal to a percentage of the principal amount thereof plus accrued interest as reflected on Exhibit A hereto.
The Company and Anadarko will deliver against payment of the purchase price the Offered Securities in the form of one or more permanent global securities in definitive form (the "GLOBAL SECURITIES") deposited with the Trustee as custodian for The Depository Trust Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC. Interests in any permanent Global Securities will be held only in book-entry form through DTC, except in the limited circumstances described in the Offering Document. Payment for the Offered Securities shall be made by the Purchaser in Federal (same day) funds by wire transfer to an account at a bank acceptable to the Purchaser drawn to the order of the Company at the office of Hughes Hubbard & Reed LLP, One Battery Park Plaza, New York, N.Y. at 9 A.M. (New York time), on May 23, 2001, or at such other time, not later than seven full business days thereafter, as the Purchaser and Anadarko determine, such time being herein referred to as the "CLOSING DATE", against delivery to the Trustee as custodian for DTC of the Global Securities representing all of the Offered Securities. The Global Securities will be made available for checking at the office of the Purchaser at least 24 hours prior to the Closing Date.
4. Representations by Purchaser; Resale by Purchaser.
(a) The Purchaser represents and warrants to Anadarko and the Company that it is an "accredited investor" within the meaning of Regulation D under the Securities Act.
(b) The Purchaser acknowledges that the Offered Securities have not been registered under the Securities Act and may not be offered or sold within the United States except pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. The Purchaser represents and agrees that it has not offered or sold, and will not offer or sell, any Offered Securities within the United States, except in accordance with Rule 144A or Rule 903 under the Securities Act. Accordingly, neither the Purchaser nor its affiliates, nor any persons acting on its or their behalf, have engaged or will engage in any directed selling efforts with respect to the Offered Securities. Terms used in this subsection (b) have the meanings given to them by Regulation S.
(c) The Purchaser agrees that it and each of its affiliates has not entered and will not enter into any contractual arrangement with respect to the distribution of the Offered Securities except with the prior written consent of Anadarko.
(d) The Purchaser agrees that it and each of its affiliates will not offer or sell the Offered Securities by means of any form of general solicitation or general advertising, within the meaning of Rule 502(c) under the Securities Act, including, but not limited to (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media or broadcast over television or radio, or (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising. The Purchaser agrees, with respect to resales made in reliance on Rule 144A of any of the Offered Securities, to deliver either with the confirmation of such resale or otherwise prior to settlement of such resale a notice to the effect that the resale of such Offered Securities has been made in reliance upon the exemption from the registration requirements of the Securities Act provided by Rule 144A.
5. Certain Agreements of the Company and Anadarko. Each of the Company and Anadarko agrees with the Purchaser that:
(a) Anadarko will advise the Purchaser promptly of any proposal to amend or supplement the Offering Document. If, at any time prior to the completion of the resale of the Offered Securities by the Purchaser any event occurs as a result of which the Offering Document as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, Anadarko and the Company promptly will notify the Purchaser of such event and promptly will prepare, at their own expense, an amendment or supplement which will correct such statement or omission.
(b) Anadarko will furnish to the Purchaser copies of the Offering Document and all amendments and supplements to such document, in each case as soon as available and in such quantities as the Purchaser requests. At any time when Anadarko is not subject to Section 13 or 15(d) of the Exchange Act, Anadarko will promptly furnish or cause to be furnished to the Purchaser and, upon request of holders and prospective purchasers of the Offered Securities, to such holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. Anadarko will pay the expenses of printing and distributing to the Purchaser all such documents.
(c) Anadarko will arrange for the qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such states in the United States as the Purchaser designates and will continue such qualifications in effect so long as required for the resale of the Offered Securities by the Purchaser, provided that Anadarko and the Company will not be required to qualify as a foreign corporation or otherwise subject itself to a general consent to service of process or taxation in any jurisdiction in which it is not otherwise so qualified or subject.
(d) During the period of five years hereafter, Anadarko will furnish to the Purchaser, as soon as practicable after the end of each fiscal year, a copy of Anadarko's annual report to shareholders for such year; and Anadarko will furnish to the Purchaser (i) as soon as available, a copy of each report and any definitive proxy statement of Anadarko filed with the Commission under the Exchange Act or mailed to shareholders ; provided, however, that Anadarko shall not be required to provide the Purchaser with any such reports or similar forms that have been filed with the Commission by electronic transmission pursuant to EDGAR.
(e) During the period of two years after the Closing Date, Anadarko will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them.
(f) The Company will pay all expenses incidental to the performance of its obligations under this Agreement, the Indenture and the Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers; (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Offered Securities, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable the Exchange Securities; (iii) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions as the Purchaser designates and the printing of memoranda relating thereto, (iv) any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities and (v) expenses incurred in distributing the Offering Document (including any amendments and supplements thereto) to the Purchaser. The Company will reimburse the Purchaser for all travel expenses of the Purchaser and the Company's officers and employees and any other expenses of the Purchaser and the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities.
(g) In connection with the offering, until the Purchaser shall have notified Anadarko of the completion of the resale of the Offered Securities, neither Anadarko nor any of its affiliates has or will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither Anadarko nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Offered Securities.
(h) For a forty-five (45) day period commencing on May 16, 2001, without the Purchaser's Consent, the Company and Anadarko will not issue or cause to be issued senior debt securities having a maturity of 10 years or more, other than:
o the notes offered hereby;
o any debt securities similar to the notes offered hereby and issued in exchange therefore;
o Zero Yield Puttable Contingent Debt Securities due 2021 issued in exchange for similar debt securities issued by Anadarko on March 13, 2001;
o 6 3/4% Senior Notes due 2011 and 7 1/2% Senior Notes due 2031 of the Company, guaranteed by Anadarko, issued in exchange for similar debt securities issued by the Company on April 26, 2001; or
o any debt securities that are convertible into equity securities.
(i) The Company and Anadarko will indemnify and hold harmless the Purchaser against any documentary, stamp or similar issuance tax, including any interest and penalties, on the creation, issuance and sale of the Offered Securities and on the execution and delivery of this Agreement. All payments to be made by the Company and Anadarko hereunder shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Company or Anadarko is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Company shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made.
6. Conditions of the Obligation of the Purchaser. The obligation of the Purchaser to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the Company and Anadarko herein, to the accuracy of the statements of officers of the Company and Anadarko made pursuant to the provisions hereof, to the performance by the Company and Anadarko of its obligations hereunder and to the following additional conditions precedent:
(a) The Purchaser shall have received a letter, dated the Closing Date, of KPMG LLP confirming that they are independent public accountants with respect to Anadarko within the meaning of the Securities Act and the applicable published rules and regulations thereunder ("RULES AND REGULATIONS") and to the effect that:
(i) in their opinion the financial statements examined by them and included in the Offering Document and in the Exchange Act Reports comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the applicable published rules and regulations thereunder; and
(ii) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 71, Interim Financial Information, on the unaudited financial statements included in the Exchange Act Reports; and stating the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily covered by accountant's "comfort letters" to underwriters in connection with registered public offerings, in form and substance satisfactory to the Purchaser.
(b) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any material adverse change in the condition, financial or otherwise, of Anadarko and its subsidiaries taken as a whole, or in the earnings, business or operations of Anadarko and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, or (ii) any new outbreak of hostilities or other calamity or crisis the effect of which on the financial markets of the United States is such as to make it, in the reasonable judgment of the Purchaser, impracticable to market the Offered Securities or enforce contracts for the sale of Offered Securities, or (iii) trading generally on either the American Stock Exchange or the New York Stock Exchange has been suspended, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required, by either of such exchanges or by order of the Commission or any other governmental authority, or a banking moratorium has been declared by either federal or New York authorities. In the event of any such termination, the provisions of Sections 5(f), 6, 7 and 8 shall remain in effect.
(c) The Purchaser shall have received an opinion, dated Closing Date, as follows:
(i) from Andrews & Kurth LLP, as counsel to the Company, its written opinion, addressed to the Purchaser, in substantially the form delivered in the 6 3/4% Senior Notes due 2011 and 7 1/2% Senior Notes due 2031 transaction, but with respect to the Offered Securities.
(ii) from the General Counsel or an Assistant General Counsel of the Company, his written opinion addressed to the Purchaser, in substantially the form delivered in the 6 3/4% Senior Notes due 2011 and 7 1/2% Senior Notes due 2031 transaction, but with respect to the Offered Securities.
(iii) from McInnes Cooper, as Canadian counsel to the Company, its written opinion addressed to the Purchaser, in substantially the form delivered in the 6 3/4% Senior Notes due 2011 and 7 1/2% Senior Notes due 2031 transaction, but with respect to the Offered Securities.
(iv) from Hughes Hubbard & Reed LLP, as counsel to the Purchaser, its written opinion addressed to the Purchaser, in substantially the form delivered in the 6 3/4% Senior Notes due 2011 and 7 1/2% Senior Notes due 2031 transaction, but with respect to the Offered Securities.
(d) The Purchaser shall have received a certificate, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Company and Anadarko in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company and Anadarko in this Agreement are true and correct, that the Company and Anadarko have complied with all agreements and satisfied all conditions on their parts to be performed or satisfied hereunder at or prior to the Closing Date, and that, subsequent to the date of the most recent financial statements in the Exchange Act Reports there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of Anadarko and its subsidiaries taken as a whole except as set forth in or contemplated by the Offering Document or as described in such certificate.
(e) Each of the Company and Anadarko shall have duly executed the Operative Documents to which it is a party and delivered such Operative Documents to the Purchaser in form and substance reasonably satisfactory to the Purchaser.
The Company and Anadarko will furnish the Purchaser with such conformed copies of such opinions, certificates, letters and documents as the Purchaser reasonably requests. The Purchaser may in its sole discretion waive compliance with any conditions to its obligations hereunder.
7. Indemnification and Contribution.
(a) The Company and Anadarko, jointly and severally, agree to indemnity and hold harmless the Purchaser and each person, if any, who controls the Purchaser within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Offering Document (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to the Purchaser furnished to the Company in writing by the Purchaser expressly for use therein.
(b) The Purchaser agrees to indemnify and hold harmless the Company, Anadarko and each person, if any, who controls the Company and Anadarko within the meaning of either Section 15 and their respective officers and directors of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company and Anadarko to the Purchaser, but only with reference to information relating to the Purchaser furnished to the Company in writing by the Purchaser expressly for use in the Offering Document or any amendments or supplements thereto, it being understood and agreed that the only such information furnished by the Purchaser consists of the second and third sentences of the eighth paragraph under the caption "Plan of Distribution" in the Offering Circular and the tenth paragraph thereof.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 7(a) or 7(b), such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (a) the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Purchaser, in the case of parties indemnified pursuant to Section 7(a), and by Anadarko, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and Anadarko on the one hand and the Purchaser on the other hand from the offering of the Offered Securities or (ii) if the allocation provided by clause 7(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 7(d)(i) above but also the relative fault of the Company and Anadarko on the one hand and of the Purchaser on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company and Anadarko on the one hand and the Purchaser on the other hand in connection with the offering of the Offered Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Offered Securities (before deducting expenses) received by the Company and Anadarko and the total underwriting discounts and commissions received by the Purchaser, in each case as set forth in Exhibit A, and in the cross receipt, bear to the aggregate offering price of the Offered Securities. The relative fault of the Company and Anadarko on the one hand and the Purchaser on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and Anadarko or by the Purchaser and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) The Company and Anadarko and the Purchaser agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in Section 7(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7, the Purchaser shall not be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities purchased by it and distributed to the public were offered to the public exceeds the amount of any damages that the Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 7 and the representations, warranties and other statements of the Company and Anadarko contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Purchaser or any person controlling the Purchaser or by or on behalf of the Company or Anadarko, or their officers or directors or any person controlling the Company or Anadarko and (iii) acceptance of and payment for any of the Offered Securities.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers, Anadarko and its officers and of the Purchaser set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of the Purchaser, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If for any reason the
purchase of the Offered Securities by the Purchaser is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company and the
Purchaser pursuant to Section 7 shall remain in effect. If the purchase of the
Offered Securities by the Purchaser is not consummated for any reason other than
solely because of the occurrence of any event specified in clause (iii) of
Section 6(b), the Company will reimburse the Purchaser for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by it in connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Purchaser will be mailed, delivered or telegraphed and confirmed to
the Purchaser at Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention:
Transactions Advisory Group, or, if sent to the Company or Anadarko, will be
mailed, delivered or telegraphed and confirmed to it at 17001 Northchase Drive,
Houston, Texas, 77060, Attention: Vice President and Treasurer.
10. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the controlling persons referred to in Section 7, and no other person will have any right or obligation hereunder, except that holders of Offered Securities shall be entitled to enforce the agreements for their benefit contained in the second and third sentences of Section 5(b) hereof against the Company as if such holders were parties hereto.
11. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
If the foregoing is in accordance with the Purchaser's understanding of our agreement, kindly sign and return to each of the Company and Anadarko one of the counterparts hereof, whereupon it will become a binding agreement by and among the Company, Anadarko and the Purchaser in accordance with its terms.
Very truly yours,
ANADARKO FINANCE COMPANY
By: /s/ ALBERT L. RICHEY Treasurer |
ANADARKO PETROLEUM CORPORATION
By: /s/ ALBERT L. RICHEY Vice President and Treasurer |
The foregoing Purchase Agreement is hereby confirmed and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ ROME ARNOLD Managing Director |
EXHIBIT A
SELECT TERMS AND CONDITIONS:
$550 MILLION 6 3/4% SENIOR NOTES DUE 2011
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MATURITY PRINCIPAL AMOUNT PRICE TO PURCHASER PRICE TO THE PUBLIC
(% of Principal Amount) (% of Principal Amount)
------------------------------- ----------------------- -------------------------- --------------------------
10-Year: May 1, 2011 US$550,000,000 99.634% 99.634%
------------------------------- ----------------------- -------------------------- --------------------------
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EXHIBIT 4(a)
ANADARKO FINANCE COMPANY
, AS COMPANY
ANADARKO PETROLEUM CORPORATION
, AS GUARANTOR
AND
THE BANK OF NEW YORK
, AS TRUSTEE
INDENTURE
DATED AS OF APRIL 26, 2001
SERIES A AND SERIES B
$400,000,000
6 3/4% SENIOR NOTES DUE 2011
$900,000,000
7 1/2% SENIOR NOTES DUE 2031
CROSS-REFERENCE TABLE*
TIA Section Indenture Section
----------- -----------------
310 (a)(1) ............................................................................. 6.10
(a)(2) ............................................................................. 6.10
(a)(3) ............................................................................. N.A.
(a)(4) ............................................................................. N.A.
(a)(5) ............................................................................. 6.10
(b) ................................................................................ 6.10; 7.01(b)
(c) ................................................................................ N.A.
311 (a) ................................................................................ 6.11
(b) ................................................................................ 6.11
(c) ................................................................................ N.A.
312 (a) ................................................................................ 2.05
(b) ................................................................................ 11.03
(c) ................................................................................ 11.03
313 (a) ................................................................................ 6.06
(b) ................................................................................ 6.06
(c) ................................................................................ 6.06
(d) ................................................................................ 6.06
314 (a) ................................................................................ 3.03
(b) ................................................................................ N.A.
(c)(1) ............................................................................. 11.04
(c)(2) ............................................................................. 11.04
(c)(3) ............................................................................. N.A.
(d) ................................................................................ N.A.
(e) ................................................................................ 11.05
(f) ................................................................................ N.A.
315 (a) ................................................................................ 6.01(b)
(b) ................................................................................ 6.05
(c) ................................................................................ 6.01(a)
(d) ................................................................................ 6.01(c)
(e) ................................................................................ 5.11
316 (a)(last sentence) ................................................................. 2.09
(a)(1)(A) .......................................................................... 5.05
(a)(1)(B) .......................................................................... 5.04
(a)(2) ............................................................................. N.A.
(b) ................................................................................ 5.07
(c) ................................................................................ 8.04
317 (a)(1) ............................................................................. 5.08
(a)(2) ............................................................................. 5.09
(b) ................................................................................ 2.04
318 (a) ................................................................................ 10.01
318 (c) ................................................................................ 10.01
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N.A. means not applicable
* This Cross-Reference Table is not part of this Indenture
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions..................................................................................1
SECTION 1.02 Other Definitions............................................................................5
SECTION 1.03 Incorporation by Reference of Trust Indenture Act............................................5
SECTION 1.04 Rules of Construction........................................................................6
ARTICLE II
THE SECURITIES
SECTION 2.01 Form and Dating..............................................................................6
SECTION 2.02 Execution and Authentication.................................................................7
SECTION 2.03 Registrar and Paying Agent...................................................................8
SECTION 2.04 Paying Agent to Hold Money in Trust..........................................................8
SECTION 2.05 Holder Lists.................................................................................8
SECTION 2.06 Transfer and Exchange........................................................................9
SECTION 2.07 Certificated Securities.....................................................................12
SECTION 2.08 Replacement Securities......................................................................13
SECTION 2.09 Outstanding Securities......................................................................13
SECTION 2.10 Treasury Securities.........................................................................13
SECTION 2.11 Temporary Securities........................................................................14
SECTION 2.12 Cancellation................................................................................14
SECTION 2.13 Defaulted Interest..........................................................................14
SECTION 2.14 Persons Deemed Owners.......................................................................14
SECTION 2.15 CUSIP Numbers...............................................................................14
ARTICLE III
COVENANTS
SECTION 3.01 Payment of Securities.......................................................................15
SECTION 3.02 Maintenance of Office or Agency.............................................................15
SECTION 3.03 SEC Reports; Financial Statements...........................................................15
SECTION 3.04 Compliance Certificate......................................................................16
SECTION 3.05 Corporate Existence.........................................................................16
SECTION 3.06 Waiver of Stay, Extension or Usury Laws.....................................................17
SECTION 3.07 Limitation on Liens.........................................................................17
ARTICLE IV
CONSOLIDATION, MERGER AND SALE
SECTION 4.01 Limitation on Mergers and Consolidations....................................................18
SECTION 4.02 Successors Substituted......................................................................19
SECTION 4.03 Assignment of Company's Obligations.........................................................20
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ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.01 Events of Default...........................................................................20
SECTION 5.02 Acceleration................................................................................21
SECTION 5.03 Other Remedies..............................................................................22
SECTION 5.04 Waiver of Existing Defaults.................................................................22
SECTION 5.05 Control by Majority.........................................................................23
SECTION 5.06 Limitations on Suits........................................................................23
SECTION 5.07 Rights of Holders to Receive Payment........................................................23
SECTION 5.08 Collection Suit by Trustee..................................................................24
SECTION 5.09 Trustee May File Proofs of Claim............................................................24
SECTION 5.10 Priorities..................................................................................24
SECTION 5.11 Undertaking for Costs.......................................................................25
ARTICLE VI
TRUSTEE
SECTION 6.01 Duties of Trustee...........................................................................25
SECTION 6.02 Rights of Trustee...........................................................................26
SECTION 6.03 Individual Rights of Trustee................................................................27
SECTION 6.04 Trustee's Disclaimer........................................................................27
SECTION 6.05 Notice of Defaults..........................................................................27
SECTION 6.06 Reports by Trustee to Holders...............................................................27
SECTION 6.07 Compensation and Indemnity..................................................................27
SECTION 6.08 Replacement of Trustee......................................................................28
SECTION 6.09 Successor Trustee by Merger, etc............................................................29
SECTION 6.10 Eligibility; Disqualification...............................................................29
SECTION 6.11 Preferential Collection of Claims Against Company...........................................29
ARTICLE VII
DISCHARGE OF INDENTURE
SECTION 7.01 Termination of Company's Obligations........................................................30
SECTION 7.02 Application of Trust Money..................................................................32
SECTION 7.03 Repayment to Company........................................................................32
SECTION 7.04 Reinstatement...............................................................................32
ARTICLE VIII
AMENDMENTS
SECTION 8.01 Without Consent of Holders..................................................................32
SECTION 8.02 With Consent of Holders.....................................................................33
SECTION 8.03 Compliance with Trust Indenture Act.........................................................35
SECTION 8.04 Revocation and Effect of Consents...........................................................35
SECTION 8.05 Notation on or Exchange of Securities.......................................................35
SECTION 8.06 Trustee to Sign Amendments, etc.............................................................35
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ARTICLE IX
GUARANTEES OF SECURITIES
SECTION 9.01 Unconditional Guarantees....................................................................36
SECTION 9.02 Execution and Delivery of Notation of Guarantees............................................38
ARTICLE X
REDEMPTION
SECTION 10.01 Notices to Trustee..........................................................................38
SECTION 10.02 Selection of Securities to be Redeemed......................................................38
SECTION 10.03 Notices to Holders..........................................................................38
SECTION 10.04 Effect of Notices of Redemption.............................................................39
SECTION 10.05 Deposit of Redemption Price.................................................................39
SECTION 10.06 Securities Redeemed in Part.................................................................40
SECTION 10.07 Optional Redemption.........................................................................40
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls................................................................40
SECTION 11.02 Notices.....................................................................................40
SECTION 11.03 Communication by Holders with Other Holders.................................................41
SECTION 11.04 Certificate and Opinion as to Conditions Precedent..........................................41
SECTION 11.05 Statements Required in Certificate or Opinion...............................................42
SECTION 11.06 Rules by Trustee and Agents.................................................................42
SECTION 11.07 Legal Holidays..............................................................................42
SECTION 11.08 No Recourse Against Others..................................................................42
SECTION 11.09 Governing Law...............................................................................42
SECTION 11.10 Consent to Jurisdiction and Service of Process..............................................42
SECTION 11.11 Waiver of Immunity..........................................................................43
SECTION 11.12 Judgment Currency...........................................................................43
SECTION 11.13 No Adverse Interpretation of Other Agreements...............................................43
SECTION 11.14 Successors..................................................................................44
SECTION 11.15 Severability................................................................................44
SECTION 11.16 Counterpart Originals.......................................................................44
SECTION 11.17 Table of Contents, Headings, etc............................................................44
EXHIBITS
EXHIBIT A Form of 10-Year Security.......................................................................A-1
EXHIBIT B Form of 30-Year Security.......................................................................B-1
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INDENTURE dated as of April 26, 2001 among Anadarko Finance Company, an unlimited liability company organized under the laws of the province of Nova Scotia, Canada (the "Company"), Anadarko Petroleum Corporation, a Delaware corporation (the "Guarantor"), and The Bank of New York, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Company's (i) 6 3/4% Series A Senior Notes due 2011 (the "Series A 10-Year Securities") and 6 3/4% Series B Senior Notes due 2011 (the "Series B 10-Year Securities" and together with the Series A 10-Year Securities, the "10-Year Securities") and (ii) 7 1/2% Series A Senior Notes due 2031 (the "Series A 30-Year Securities") and 7 1/2% Series B Senior Notes due 2031 (the "Series B 30-Year Securities" and together with the Series A 30-Year Securities, the "30-Year Securities"). The Series A 10-Year Securities and the Series A 30-Year Securities are collectively referred to herein as the "Series A Securities", and the Series B 10-Year Securities and the Series B 30-Year Securities are collectively referred to herein as the "Series B Securities." In addition, each of the Series A 10-Year Securities, the Series B 10-Year Securities, the Series A 30-Year Securities and the Series B 30-Year Securities shall constitute a "series" of Securities:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"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 purposes of this definition, "control" of a Person shall mean 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" shall have meanings correlative to the foregoing. The Trustee may request and may conclusively rely upon an Officers' Certificate to determine whether any Person is an Affiliate of any specified Person.
"Agent" means any Registrar or Paying Agent.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal, state or foreign law for the relief of debtors.
"Board of Directors" of any Person means the board of directors of such Person or any committee thereof duly authorized, with respect to any particular matter, to act by or on behalf of the board of directors of such Person.
"Business Day" means any day that is not a Legal Holiday.
"Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor corporation.
"Consolidated Net Tangible Assets " means the aggregate amount of assets of the Guarantor and its Restricted Subsidiaries (less applicable reserves and other properly deductible items but including investments in non-consolidated Persons) after deducting therefrom (a) all current liabilities (excluding any portion thereof constituting Funded Debt by reason of being renewable or extendible at the option of the obligor beyond twelve months from the date of determination) and (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set forth on a consolidated balance sheet of the Guarantor and its consolidated Subsidiaries and computed in accordance with GAAP.
"Corporate Trust Office of the Trustee" means the office of the Trustee at which the corporate trust business of the Trustee shall be principally administered, which office shall initially be located at the address of the Trustee specified in Section 11.02 hereof and may be located at such other address as the Trustee may give notice to the Company and the Holders or such other address as a successor Trustee may designate from time to time by notice to the Holders and the Company.
"Custodian" means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
"Default" means any event, act or condition that is, or after notice or the passage of time or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and their respective successors.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and any successor statute.
"Exchange Offer" means the offer that may be made by the Company pursuant to the Registration Rights Agreement to exchange each series of the Series B Securities for the corresponding series of Series A Securities.
"Exchange Offer Registration Statement" means a registration statement under the Securities Act relating to an Exchange Offer, including the related prospectus.
"Funded Debt" means all indebtedness of the Company or the Guarantor for money borrowed which is not by its terms subordinated in right of payment to the prior payment in full of the Securities (in the case of indebtedness of the Company) or the Guarantees (in the case of indebtedness of the Guarantor), having a maturity of more than 12 months from the date as of which the amount thereof is to be determined or having a maturity of less than 12 months but by its terms being (i) renewable or extendible beyond 12 months from such date at the option of the obligor or (ii) issued in connection with a commitment by a bank or other financial institution to lend so that such indebtedness is treated as though it had a maturity in excess of 12 months pursuant to GAAP.
"GAAP" means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession of the United States, as in effect from time to time.
"Guarantor" means the Person named as the "Guarantor" in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Guarantor" shall mean such successor corporation.
"Holder" means a Person in whose name a Security is registered.
"Indebtedness" means any indebtedness for money borrowed or representing the deferred purchase price of property or assets purchased.
"Indenture" means this Indenture as amended or supplemented from time to time.
"Initial Purchaser" means Credit Suisse First Boston Corporation, as initial purchaser of the Series A Securities in the Offering.
"Interest Payment Date" shall have the meaning assigned to such term in the Securities.
"Issue Date" means the first date on which the Series A Securities are issued under this Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking institutions in any of New York, New York, Houston, Texas or a place of payment are authorized or obligated by law, regulation or executive order to remain closed.
"Liquidated Damages" has the meaning given to such term in the Registration Rights Agreement.
"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, call for redemption or otherwise.
"Mortgage" means and includes any mortgage, pledge, lien, security interest, conditional sale or other title retention agreement or other similar encumbrance.
"Offering" means the offering of the Original Securities pursuant to the Offering Circular.
"Offering Circular" means the Confidential Offering Circular of the Company, dated April 19, 2001, relating to the Offering.
"Officer" means the Chairman of the Board, the Chief Executive Officer, the President, any Vice Chairman of the Board, any Vice President, the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Assistant Secretary of a Person.
"Officers' Certificate" means a certificate signed by two Officers of a Person, one of whom must be the Person's Chief Executive Officer, Chief Financial Officer or Chief Accounting Officer.
"Opinion of Counsel" means a written opinion from legal counsel who is acceptable to the Trustee. Such counsel may be an employee of or counsel to the Company, the Guarantor or the Trustee.
"Person" means any individual, corporation, partnership, limited liability company, limited or general partnership, joint venture, incorporated or unincorporated association, joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof or other entity of any kind.
"Principal Property" means any manufacturing plant, processing plant, property interest in oil, gas, coal or other minerals in place or in geothermal resources in place, pipeline, warehouse, office building or interest in real property which is located in the United States or offshore the United States and owned by the Guarantor or any Restricted Subsidiary, the gross book value (without deduction of any depreciation or depletion reserves) of which on the date as of which the determination is being made exceeds 2% of Consolidated Net Tangible Assets, other than any such plant, property interest, pipeline, warehouse, office building or interest in real property, or any portion of the foregoing, which, in the opinion of the Board of Directors of the Guarantor, is not of material importance to the total business conducted by the Guarantor and its Subsidiaries as an entirety.
"Private Exchange" means the offer by the Company, pursuant to the Registration Rights Agreement, to the Initial Purchaser to issue and deliver to the Initial Purchaser, in exchange for the Original Securities held by the Initial Purchaser as part of its initial distribution, a like aggregate principal amount of Private Exchange Securities.
"Private Exchange Securities" means the Series B Securities to be issued pursuant to this Indenture to the Initial Purchaser in a Private Exchange.
"Purchase Agreement" means the Purchase Agreement, dated as of April 19, 2001, among the Company, the Guarantor and the Initial Purchaser.
"Q.B." means a "qualified institutional buyer" as defined in Rule 144A.
"Redemption Date," when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" shall have the meaning assigned to such term in the Securities.
"Registration Rights Agreement" means that certain Registration Rights Agreement, dated as of April 26, 2001, among the Company, the Guarantor and the Initial Purchaser relating to the Securities.
"Responsible Officer" shall mean, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
"Restricted Subsidiary" means any Subsidiary of the Guarantor, except a Subsidiary of the Guarantor that (a) neither transacts any substantial portion of its business nor regularly maintains any substantial portion of its fixed assets within the United States of America or offshore the United States of America or (b) is engaged primarily in financing the operations of the Guarantor or its Subsidiaries, or both.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Series A Securities and the Series B Securities.
"Securities Act" means the Securities Act of 1933, as amended, and any successor statute.
"Securities Custodian" means the Trustee, as custodian with respect to the Securities in global form, or any successor entity thereto.
"Series A Securities" means, collectively, the Company's (i) 6 3/4% Series A Senior Notes due 2011 and (ii) 7 1/2% Series A Senior Notes due 2031, in each case, to be issued pursuant to this Indenture.
"Series B Securities" means, collectively, the Company's (i) 6 3/4% Series B Senior Notes due 2011 and (ii) 7 1/2% Series B Senior Notes due 2031, in each case, to be issued pursuant to this Indenture in the Exchange Offer.
"Shelf Registration Statement" means the registration statement to be filed by the Company, in connection with the offer and sale of Original Securities or Private Exchange Securities, pursuant to the Registration Rights Agreement.
"Stated Maturity" means, with respect to any Security, the date specified in such Security as the fixed date on which the principal of such Security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such Security at the option of the holder thereof upon the happening of any contingency unless such contingency has occurred).
"Subsidiary" of any Person means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries of such Person, or by such Person and one or more other Subsidiaries of such Person. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C. Sections 77aaa-77bbbb), as in effect on the Issue Date.
"Transfer Restricted Securities" has the meaning assigned to such term in Section 6 of the Registration Rights Agreement.
"Trustee" means the party named as such above until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
"U.S. Government Obligations" means direct obligations of the United States of America for the payment of which the full faith and credit of the United States of America is pledged.
SECTION 1.02 Other Definitions.
TERM DEFINED IN SECTION
--------------------------------------------------- ------------------
"Agent Members" ................................... 2.01(c)
"DTC" ............................................. 2.03
"Event of Default" ................................ 5.01
"Global Security" ................................. 2.01(b)
"Guarantees" ...................................... 9.01(a)
"Original Securities" ............................. 2.02
"Paying Agent" .................................... 2.03
"Registrar" ....................................... 2.03
"Regulation S" .................................... 2.01(b)
"Rule 144A" ....................................... 2.01(b)
"Successor" ....................................... 4.01
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SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
"commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and the Guarantor.
All terms used in this Indenture that are defined by the TIA, defined by a TIA reference to another statute or defined by an SEC rule under the TIA have the meanings so assigned to them.
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE II
THE SECURITIES
SECTION 2.01 Form and Dating.
(a) General. The 10-Year Securities and the 30-Year Securities, any notations thereon relating to the Guarantees and the Trustee's certificate of authentication shall be substantially in the form of Exhibits A and B, respectively, to this Indenture, the terms of which are hereby incorporated into this Indenture. The Securities may have notations, legends or endorsements required by law, securities exchange rule, the Company's certificate of incorporation, memorandum of association, articles of association, other organizational documents, agreements to which the Company is subject, if any, or usage, provided that any such notation, legend or endorsement is in a form acceptable to the Company. Each Security shall be dated the date of its authentication. The Securities shall be in registered form without coupons and only in denominations of $1,000 and any integral multiples thereof. The terms and provisions contained in the Securities shall constitute, and are hereby expressly made, a part of this Indenture and to the extent applicable, the Company, the Guarantor and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.
(b) Global Securities. Original Securities of any Series offered and sold to a Q.B. in reliance on Rule 144A under the Securities Act ("Rule 144A") or in reliance on Regulation S under the Securities Act ("Regulation S"), in each case as provided in the Purchase Agreement, shall be issued initially in the form of one or more permanent global Securities in definitive, fully registered form without interest coupons with the global securities legend and restricted securities legend set forth in Section 2.06 (each, a "Global Security"), which shall be deposited on behalf of the purchasers of the Original Securities represented thereby with the Trustee, at its New York office, as custodian for the Depositary (or with such other custodian as the Depositary may direct), and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the Global Securities may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee as hereinafter provided.
(c) Book-entry Provisions. This Section 2.01(c) shall apply only to a Global Security deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with this Section 2.01(c), authenticate and deliver initially one or more Global Securities that (i) shall be registered in the name of the Depositary for such Global Security or Global Securities or the nominee of such Depositary and (ii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary's instructions or held by the Trustee as custodian for the Depositary.
Members of, or participants in, the Depositary ("Agent Members") shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary or by the Trustee as the custodian of the Depositary or under such Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Security.
(d) Certificated Securities. Except as provided in this Section 2.01 or
Section 2.06 or 2.07, owners of beneficial interests in Global Securities will
not be entitled to receive physical delivery of certificated Securities.
SECTION 2.02 Execution and Authentication.
One Officer of the Company shall sign the Securities on behalf of the Company by manual or facsimile signature. The Company's seal may be (but shall not be required to be) impressed, affixed, imprinted or reproduced on the Securities and may be in facsimile form.
If an Officer of the Company whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of an authorized signatory of the Trustee, which signature shall be conclusive evidence that the Security has been authenticated under this Indenture.
The Trustee shall authenticate (i) for original issue on the Issue Date each of (A) the 10-Year Series A Securities in the aggregate principal amount of $400,000,000 and (B) the 30-Year Series A Securities in the aggregate principal amount of $900,000,000 (collectively, the "Original Securities"), (ii) the Series B Securities for original issue, pursuant to an Exchange Offer or Private Exchange, for a like principal amount of Series A Securities and (iii) any amount of additional Securities specified by the Company, in each case, upon a written order of the Company signed by one Officer of the Company. Such order shall specify (a) the amount of the Securities of each series to be authenticated and the date of original issue thereof, and (b) whether the Securities are Series A Securities or Series B Securities. The aggregate principal amount of Securities of any series outstanding at any time may not exceed the aggregate principal amount of Securities of such series authorized for issuance by the Company pursuant to one or more written orders of the Company, except as provided in Section 2.08 hereof. Subject to the foregoing, the aggregate principal amount of Securities of any series that may be issued under this Indenture shall not be limited.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Securities. Unless limited by the terms of such appointment, an authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company, or an Affiliate of any of them.
The Series A Securities of any series and the corresponding Series B Securities of such series shall be considered collectively to be a single class for all purposes of this Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase.
SECTION 2.03 Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be presented for registration of transfer or exchange ("Registrar") and an office or agency where Securities may be presented for payment ("Paying Agent"). The Registrar shall keep a register of the Securities and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term "Registrar" includes any co-registrar and the term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address of any Agent not a party to this Indenture. The Company may change any Paying Agent or Registrar without notice to any Holder. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and Paying Agent.
The Company initially appoints The Depository Trust Company ("DTC") to act as Depositary with respect to each Global Security.
SECTION 2.04 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of or premium, if any, or interest on the Securities, whether such money shall have been paid to it by the Company or the Guarantor, and will notify the Trustee of any default by the Company or the Guarantor in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed. Upon payment over to the Trustee and upon accounting for any funds disbursed, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent.
SECTION 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least seven Business Days before each Interest Payment Date, and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders, and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. (i) The transfer and exchange of Global Securities or beneficial interests therein shall be effected through the Depositary, in accordance with this Indenture (including applicable restrictions on transfer set forth herein, if any) and the procedures of the Depositary therefor. A transferor of a beneficial interest in a Global Security shall deliver to the Registrar a written order given in accordance with the Depositary's procedures containing information regarding the participant account of the Depositary to be credited with a beneficial interest in the Global Security. The Registrar shall, in accordance with such instructions, instruct the Depositary to credit to the account of the Person specified in such instructions a beneficial interest in the Global Security and to debit the account of the Person making the transfer the beneficial interest in the Global Security being transferred.
(ii) Notwithstanding any other provisions of this Indenture (other than the provisions set forth in Section 2.07), a Global Security may not be transferred as a whole except 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.
(iii) If a Global Security is exchanged for Securities in definitive registered form pursuant to this Section 2.06 or Section 2.07 of this Indenture, prior to the consummation of an Exchange Offer or prior to or in a transfer made pursuant to an effective Shelf Registration Statement with respect to such Securities, such Securities may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of this Section 2.06 (including the certification and other requirements set forth on the reverse of the Original Securities intended to ensure that such transfers comply with Rule 144A or Regulation S, as the case may be, or are otherwise in compliance with the requirements of the Securities Act) and such other procedures as may from time to time be adopted by the Company.
(b) Legend.
(i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each Security certificate evidencing the Global
Securities (and all Securities issued in exchange therefor or in
substitution thereof) shall bear a legend in substantially the
following form:
"THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF 1933"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933;
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OF 1933, (C) TO A NON-U.S. PERSON OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OF 1933, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE) OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND."
(ii) Upon any sale or transfer of a Transfer Restricted Security (including any Transfer Restricted Security represented by a Global Security) pursuant to Rule 144 under the Securities Act, in the case of any Transfer Restricted Security that is represented by a Global Security, the Registrar shall permit the Holder thereof to exchange such Transfer Restricted Security for a certificated Security that does not bear the legend set forth above and rescind any restriction on the transfer of such Transfer Restricted Security, if the Holder certifies in writing to the Registrar that its request for such exchange was made in reliance on Rule 144 (such certification to be in the form set forth on the reverse of the Security).
(iii) After a transfer of any Original Securities or Private Exchange Securities during the period of the effectiveness of and pursuant to a Shelf Registration Statement with respect to such Original Securities or Private Exchange Securities, as the case may be, all requirements pertaining to legends on such Original Security or such Private Exchange Security will cease to apply, the requirements requiring any such Original Security or such Private Exchange Security issued to certain Holders be issued in global form will cease to apply, and a certificated Original Security or Private Exchange Security without legends will be available to the transferee of the Holder of such Original Securities or Private Exchange Securities upon exchange of such transferring Holder's certificated Original Security or Private Exchange Security or directions to transfer such Holder's interest in the Global Security, as applicable.
(iv) Upon the consummation of a Registered Exchange Offer with respect to the Original Securities pursuant to which Holders of such Original Securities are offered Exchange Securities in exchange for their Original Securities, all requirements pertaining to such Original Securities that Original Securities issued to certain Holders be issued in global form will cease to apply and certificated Original Securities with the restricted securities legend set forth in Section 2.06(b) will be available to Holders of such Original Securities that do not exchange their Original Securities, and Exchange Securities in certificated or global form will be available to Holders that exchange such Original Securities in such Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect to the Original Securities pursuant to which Holders of such Original Securities are offered Private Exchange Securities in exchange for their Original Securities, all requirements pertaining to such Original Securities that Original Securities issued to certain Holders be issued in global form will still apply, and Private Exchange Securities in global form with the Restricted Securities Legend set forth in
Section 2.06(b) will be available to Holders that exchange such Original Securities in such Private Exchange.
(c) Cancellation or Adjustment of Global Security. At such time as all beneficial interests in a Global Security have either been exchanged for certificated Securities, redeemed, repurchased or canceled, such Global Security shall be returned to the Depositary for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Security is exchanged for certificated Securities, redeemed, repurchased or canceled, the principal amount of Securities represented by such Global Security shall be reduced and an adjustment shall be made on the books and records of the Trustee (if it is then the Securities Custodian for such Global Security) with respect to such Global Security, by the Trustee or the Securities Custodian, to reflect such reduction.
(d) Obligations with Respect to Transfers and Exchanges of Securities.
(i) To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate certificated Securities and Global Securities at the Registrar's or co-Registrar's request. No service charge shall be made for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charge payable upon exchange or transfer pursuant to Sections 5.11, 8.05 and 10.06 of the Indenture).
(ii) The Registrar or co-registrar shall not be required to register the transfer of or exchange of (a) any certificated Security selected for redemption in whole or in part pursuant to Article X of this Indenture, except the unredeemed portion of any certificated Security being redeemed in part, or (b) any Security for a period beginning 15 Business Days before the mailing of a notice of an offer to repurchase or redeem Securities or 15 Business Days before an interest payment date.
(iii) Prior to the due presentation for registration of transfer of any Security, the Company, the Trustee, the Paying Agent, the Registrar or any co-Registrar may deem and treat the Person in whose name a Security is registered as the absolute owner of such Security for the purpose of receiving payment of principal of, premium, if any, and interest and Liquidated Damages, if any, on such Security and for all other purposes whatsoever, whether or not such Security is overdue, and none of the Company, the Trustee, the Paying Agent, the Registrar or any co-registrar shall be affected by notice to the contrary.
(iv) All Securities issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Securities surrendered upon such transfer or exchange.
(e) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Security, any Agent Member or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Securities or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption) or the payment of any amount, under or with respect to such Securities. All notices and communications to be given to the Holders and all payments to be made to Holders under the Securities shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security
shall be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Trustee may rely conclusively and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among Depositary participants, members or beneficial owners in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
SECTION 2.07 Certificated Securities.
(a) A Global Security deposited with the Depositary or with the Trustee as custodian for the Depositary pursuant to Section 2.01 shall be transferred to the beneficial owners thereof in the form of certificated Securities in an aggregate principal amount equal to the principal amount of such Global Security, in exchange for such Global Security, only if such transfer complies with Section 2.06 and (i) the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a "clearing agency" registered under the Exchange Act and a successor depositary is not appointed by the Company within 90 days of such notice, or (ii) the Company, in its sole discretion, notifies the Trustee in writing that it elects to cause the issuance of certificated Securities under this Indenture.
(b) Any Global Security that is transferred to the beneficial owners thereof pursuant to this Section shall be surrendered by the Depositary to the Trustee at its office located in the Borough of Manhattan, The City of New York, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global Security, an equal aggregate principal amount of certificated Securities of authorized denominations. Any portion of a Global Security transferred pursuant to this Section shall be executed, authenticated and delivered only in denominations of $1,000 and any integral multiple thereof and registered in such names as the Depositary shall direct. Any certificated Original Security delivered in exchange for an interest in the Global Security shall, except as otherwise provided by Section 2.06(d), bear the restricted securities legend set forth in Section 2.06(b).
(c) Subject to the provisions of Section 2.06(b), the registered Holder of a Global Security may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Securities.
(d) If either of the events specified in Section 2.07(a) occurs, the Company will promptly make available to the Trustee a reasonable supply of certificated Securities in definitive, fully registered form without interest coupons.
(e) If a certificated Security issued pursuant to this Section 2.07 is exchanged for another certificated Security prior to the consummation of an Exchange Offer or prior to or in a transfer made pursuant to an effective Shelf Registration Statement with respect to such Securities, such Securities may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of (i) Section 2.06(a)(iii) (including the certification and other requirements set forth on the reverse of the Original Securities intended to ensure that such transfers comply with Rule 144A or Regulation S, as the case
may be, or are otherwise in compliance with the requirements of the Securities Act) and such other procedures as may from time to time be adopted by the Company and (ii) Section 2.06(b).
SECTION 2.08 Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or the Company and the Guarantor and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security, the Company shall issue and the Trustee shall authenticate a replacement Security, with an endorsement of the Guarantee executed by the Guarantor, but only if the Trustee's requirements are met. If required by the Trustee, the Company or the Guarantor, such Holder must furnish an indemnity bond that is sufficient in the judgment of the Trustee, the Company and the Guarantor to protect the Company, the Guarantor, the Trustee, any Agent or any authenticating agent from any loss which any of them may suffer if a Security is replaced. The Company, the Trustee and the Guarantor may charge for their expenses in replacing a Security. If, after the delivery of such replacement Security, a bona fide purchaser of the original Security in lieu of which such replacement Security was issued presents for payment or registration such original Security, the Trustee shall be entitled to recover such replacement Security from the Person to whom it was delivered or any Person taking therefrom, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Trustee, the Company or the Guarantor in connection therewith.
Every replacement Security is an additional obligation of the Company.
SECTION 2.09 Outstanding Securities.
The Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Security effected by the Trustee hereunder and those described in this Section 2.09 as not outstanding; provided, however, that in determining whether the holders of the requisite principal amount of outstanding Securities are present at a meeting of holders of Securities for quorum purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification hereunder, Securities held for the account of the Guarantor, the Company, any of their respective Subsidiaries or any of their respective Affiliates shall be disregarded and deemed not to be outstanding, except that in determining whether the Trustee shall be protected in making such a determination or relying upon any such quorum, consent or vote, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded.
If a Security is replaced pursuant to Section 2.08 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under
Section 3.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
A Security does not cease to be outstanding because the Company, a Guarantor or an Affiliate of any of them holds the Security.
SECTION 2.10 Treasury Securities.
In determining whether the Holders of the required principal amount of Securities of any series have concurred in any direction, waiver or consent, Securities owned by the Company, the Guarantor or an Affiliate of any of them shall be disregarded, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Securities which the Trustee knows are so owned shall be so disregarded.
SECTION 2.11 Temporary Securities.
Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially in the form of definitive Securities, but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Securities in exchange for temporary Securities. Until so exchanged, the temporary Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Securities.
SECTION 2.12 Cancellation.
The Company or the Guarantor at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for registration of transfer, exchange, payment, replacement or cancellation. All canceled Securities held by the Trustee shall be disposed of in accordance with the usual disposal procedures of the Trustee. The Company may not issue new Securities to replace Securities that have been paid or that have been delivered to the Trustee for cancellation.
SECTION 2.13 Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest on the defaulted interest, in each case at the rate provided in the Securities and in Section 3.01 hereof. The Company may pay the defaulted interest to the Persons who are Holders on a subsequent special record date. At least 15 days before any special record date, the Company (or the Trustee, in the name of and at the expense of the Company) shall mail to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid.
SECTION 2.14 Persons Deemed Owners.
The Company, the Guarantor, the Trustee, any Agent and any authenticating agent may treat the Person in whose name any Security is registered as the owner of such Security for the purpose of receiving payments of principal of or premium, if any, or interest on such Security and for all other purposes. None of the Company, the Guarantor, the Trustee, any Agent or any authenticating agent shall be affected by any notice to the contrary.
SECTION 2.15 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers 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 a 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 of any change in the "CUSIP" numbers.
ARTICLE III
COVENANTS
SECTION 3.01 Payment of Securities.
The Company shall pay the principal of and premium, if any, Liquidated Damages, if any, and interest on the Securities on the dates and in the manner provided in the Securities and in this Indenture. Principal, premium, if any, Liquidated Damages, if any, and interest shall be considered paid on the date due if the Paying Agent, other than the Company or a Subsidiary of the Company, holds by 11:00 a.m., Eastern time, on that date money deposited by the Company designated for and sufficient to pay all principal, premium, if any, Liquidated Damages, if any, and interest then due.
To the extent lawful, the Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal, premium, if any, Liquidated Damages, if any, and interest payments (without regard to any applicable grace period) at a rate equal to the then applicable interest rate on the Securities.
Solely for purposes of disclosure pursuant to the Interest Act (Canada) (and for no other purpose), the annual interest rate applicable to any series of Securities, for any portion of any period of less than one year will be the percentage interest rate per annum stipulated in the Securities as to which the calculation must be made, multiplied by the number of days in the calendar year in which the applicable interest is paid, divided by 360.
SECTION 3.02 Maintenance of Office or Agency.
The Company will maintain, in the Borough of Manhattan, The City of New York, an office or agency (which may be an office of the Trustee, the Registrar or the Paying Agent) where Securities may be presented for registration of transfer or exchange, where Securities may be presented for payment and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. Unless otherwise designated by the Company by written notice to the Trustee, such office or agency shall be the principal office of the Trustee in the Borough of Manhattan, The City of New York, which, on the date hereof, is located at the address set forth in Section 11.02 hereof. 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.
The Company may also from time to time designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, The City of New York for such purposes. The Company 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. The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03 hereof.
SECTION 3.03 SEC Reports; Financial Statements.
(a) Notwithstanding that the Company and the Guarantor may not be required to remain subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Guarantor shall file with the SEC and provide the Trustee and the Holders with such annual and quarterly reports and such information,
documents and other reports specified in Sections 13 and 15(d) of the Exchange Act within 15 days after the date it is required (or would otherwise have been required) to file such reports, information and documents. 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 constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance and the Guarantor's compliance with any of the covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates).
(b) In addition, whether or not required by the rules and regulations of the SEC, the Guarantor will file a copy of all such information and reports with the SEC for public availability (unless the SEC will not accept such filing). In addition, the Guarantor shall furnish to the Holders and to prospective investors, upon the requests of Holders, any information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act so long as the Securities are not freely transferable under the Securities Act.
(c) The Company or the Guarantor shall provide the Trustee with a sufficient number of copies of all reports and other documents and information that the Trustee may be required to deliver to Holders under this Section 3.03.
SECTION 3.04 Compliance Certificate.
(a) The Company and the Guarantor shall deliver to the Trustee, within
120 days after the end of each fiscal year of the Company, a statement signed by
two Officers of the Company (one of whom shall be the principal financial,
principal accounting or principal executive officer of the Company) and two
Officers of the Guarantor (one of whom shall be the principal financial,
principal accounting or principal executive officer of the Guarantor), which
statement need not constitute an Officers' Certificate, complying with TIA
Section 314(a)(4) and stating that in the course of performance by the signing
Officers of the Company and Officers of the Guarantor of their duties as such
Officers, they would normally obtain knowledge of the keeping, observing,
performing and fulfilling by the Company and the Guarantor, respectively, of its
obligations under this Indenture, and further stating, as to each such Officer
signing such statement, that to the best of his knowledge, each of the Company
and the Guarantor has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or
Events of Default of which such Officer may have knowledge and what action the
Company or the Guarantor, as the case may be, is taking or proposes to take with
respect thereto).
(b) The Company and the Guarantor shall, so long as any of the Securities are outstanding, deliver to the Trustee, forthwith upon any Officer of the Company or the Guarantor becoming aware of any Default or Event of Default under this Indenture, an Officers' Certificate specifying such Default or Event of Default and what action the Company or Guarantor is taking or proposes to take with respect thereto.
SECTION 3.05 Corporate Existence.
Subject to Article IV, each of the Company and the Guarantor will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises; provided, however, that neither the Company nor the Guarantor shall be required to preserve any such right or franchise if the Board of Directors of the Guarantor shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company or the Guarantor and that the loss thereof is not disadvantageous in any material respect to the Holders of Securities.
SECTION 3.06 Waiver of Stay, Extension or Usury Laws.
Each of the Company and the Guarantor covenant (to the extent that it 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 or any usury law or other law, which would prohibit or forgive the Company or the Guarantor from paying all or any portion of the principal of, or premium, if any, Liquidated Damages, if any, or interest on the Securities as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture; and (to the extent that they may lawfully do so) each of the Company and the Guarantor 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 3.07 Limitation on Liens.
The Guarantor will not itself, and will not permit any
Restricted Subsidiary to, incur, issue, assume or guarantee any indebtedness for
money borrowed (all such indebtedness for money borrowed being hereinafter in
this Article called "Debt"), secured by a Mortgage on any Principal Property or
on any shares of stock or Indebtedness of any Restricted Subsidiary, without
effectively providing that the Securities of any series (together with, if the
Guarantor shall so determine, any other indebtedness of the Guarantor or such
Restricted Subsidiary which is not subordinate in right of payment to the prior
payment in full of the Securities of any series) 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 amount of all
Debt so secured would not exceed 10% of Consolidated Net Tangible Assets as of a
date within 150 days prior to such determination; provided, however, that this
Section shall not apply to, and there shall be excluded from secured Debt in any
computation under this Section, Debt secured by:
(1) Mortgages existing at the date of this Indenture;
(2) Mortgages on property of, or on any shares of stock or Indebtedness of, any corporation existing at the time such corporation becomes a Restricted Subsidiary;
(3) Mortgages in favor of the Guarantor or any Restricted Subsidiary;
(4) Mortgages on property, shares of stock or Indebtedness existing at the time of acquisition thereof (including acquisition through merger, consolidation or the reorganization) or to secure the payment of all or any part of the purchase price thereof or construction thereon or to secure any Debt incurred prior to, at the time of, or within 180 days after the later of the acquisition, the completion of construction or the commencement of full operation of such property or within 180 days after the acquisition of such shares or Indebtedness for the purpose of financing all or any part of the purchase price thereof or construction thereon, it being understood that if a commitment for such financing is obtained prior to or within such 180-day period, the applicable Mortgage shall be deemed to be included in this clause (4) whether or not such Mortgage is created within such 180-day period;
(5) Mortgages on property owned or leased by the Guarantor or a Restricted Subsidiary in favor of the United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of any other country or any political subdivision thereof, or in favor of holders of securities issued by any such entity, pursuant to any contract or statute (including, without limitation, mortgages or easements on property of the Guarantor or any Restricted Subsidiary related to the
financing of such property pursuant to Section 103 of the Internal Revenue Code of 1986, as amended or any successor section thereto);
(6) Mortgages to secure partial, progress, advance or other payments or any Debt incurred for the purpose of financing all or any part of the purchase price or cost of construction, development or repair, alternation or improvement of the property subject of such Mortgage if the commitment for the financing is obtained not later than one year after the latter of the completion of or the placing into operation (exclusive of test and start-up periods) of such constructed, developed, repaired, altered or improved property;
(7) Mortgages on oil, gas, coal or other minerals in place or on geothermal resources in place, or on related leasehold or other property interests, which are incurred to finance development, production or acquisition costs (including, but not limited to, Mortgages securing advance sale obligations);
(8) Mortgages on equipment used or usable for drilling, servicing or operation of oil, gas, coal or other mineral properties or of geothermal properties;
(9) Mortgages arising in connection with contracts or subcontracts with, or made at the request of, the United States of America, any State thereof or any department, agency or instrumentally of the United States or any State thereof; and
(10) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Mortgage referred to in the foregoing clauses (1) to (9) of this
Section 3.07, inclusive; provided, however, that such extension,
renewal or replacement Mortgage shall be limited to all or a part of
the same property, shares of stock or Restricted Subsidiary
Indebtedness that secured the Mortgage extended, renewed or replaced
(plus improvements on such property).
The following transactions shall not be deemed to create Debt secured by a Mortgage;
(i) the sale or other transfer of oil, gas, coal or other minerals in place for a period of time until, or in an amount such that, the transferee will realize therefrom a specified amount of money (however determined) or a specified amount of oil, gas, coal or other minerals, or the sale or other transfer of any other interest in property of the character commonly referred to as an oil, gas, coal or other mineral payment or a production payment; and
(ii) the sale or other transfer by the Guarantor or a Restricted Subsidiary of properties to a partnership, joint venture or other entity whereby the Guarantor or such Restricted Subsidiary would retain partial ownership of such properties.
ARTICLE IV
CONSOLIDATION, MERGER AND SALE
SECTION 4.01 Limitation on Mergers and Consolidations.
The Company shall not consolidate or amalgamate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person unless:
(1) (A) in the case of a merger, the Company is the surviving entity, or (B) the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation, partnership or trust, shall be organized and existing under the laws of the United States of America, any state thereof, Canada, any province thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and interest on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
The Guarantor shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person unless:
(1) (A) in the case of a merger, the Guarantor is the surviving entity, or (B) the Person formed by such consolidation or into which the Guarantor is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Guarantor substantially as an entirety shall be a corporation, partnership or trust, shall be organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of all obligations in respect of the Guarantees and the performance 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 Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and
(3) the Guarantor has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
SECTION 4.02 Successors Substituted.
Upon any consolidation of the Company or the Guarantor with, or merger of the Company or the Guarantor into, any other Person, or any conveyance, transfer or lease of the properties and assets of the Company or the Guarantor substantially as an entirety in accordance with Section 4.01, the successor Person formed by such consolidation or into which the Company or the Guarantor is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company or the Guarantor (as the case may be) 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 thereafter, except in the case of a lease to another Person, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.
SECTION 4.03 Assignment of Company's Obligations.
The Company may assign its obligations under the Securities and this Indenture to any other wholly owned Subsidiary of the Guarantor at any time without the consent of the Trustee or any Holder, provided that the assignee agrees to be bound by the terms of this Indenture and the Securities, and the Guarantees remain in full force and effect. Upon any such assignment by the Company, the Person to whom such assignment is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Securities, with the same effect as if such Person had been named as the Company herein and therein, and thereafter, the assignor Person shall be relieved of all obligations and covenants under this Indenture and the Securities. A copy of the agreement evidencing such assignment shall be provided to the Trustee by the Company, promptly after the effective date of such assignment.
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.01 Events of Default.
"Event of Default," wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether 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 Liquidated Damages) upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 60 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; or
(3) default in the performance, or breach, of any covenant or warranty of the Company or the Guarantor in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with), 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
(4) default by the Company or the Guarantor in the payment of any principal of any Funded Debt of the Company or the Guarantor outstanding in an aggregate principal amount in excess of $25,000,000 as and when the same shall become due and payable either at maturity, upon redemption, by declaration or otherwise, the effect of which default is to cause such Funded Debt to become, or to be declared, due prior to its stated maturity unless such default shall be cured, by payment or otherwise, within 30 days after the receipt by the Company and the Guarantor of written notice of such default from the Trustee or from the Holders of at least 25% in principal amount of the outstanding Securities of that series; or
(5) the Guarantee in respect of Securities of that series ceases to be in full force and effect or becomes unenforceable or invalid or is declared null and void (other than in accordance
with the terms of such Guarantee) or the Guarantor denies or disaffirms its obligations under such Guarantee; or
(6) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company or the Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company or the Guarantor a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or the Guarantor under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or the Guarantor or of any substantial part of the property of the Company or the Guarantor, or ordering the winding up or liquidation of the affairs of the Company or the Guarantor, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or
(7) the commencement by the Company or the Guarantor of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company or the Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or the Guarantor or of any substantial part of the property of the Company or the Guarantor, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company or the Guarantor in furtherance of any such action.
The Trustee shall not be deemed to know of a Default or Event of Default unless a Responsible Officer at the Corporate Trust Office of the Trustee has actual knowledge of such Default or Event of Default or the Trustee receives written notice at the Corporate Trust Office of the Trustee of such Default or Event of Default with specific reference to such Default.
When a Default is cured, or when an Event of Default is deemed cured pursuant to Section 5.04, such Default, or Event of Default, as the case may be, ceases.
SECTION 5.02 Acceleration.
If an Event of Default (other than an Event of Default specified in
clause (6) or (7) of Section 5.01 hereof with respect to the Company or the
Guarantor) with respect to any series of Securities occurs and is continuing,
the Trustee by notice to the Company, or the Holders of at least 25% in
principal amount of the then outstanding Securities of such series by notice to
the Company and the Trustee, may declare the principal of and premium, if any,
and accrued and unpaid interest and Liquidated Damages, if any, on all then
outstanding Securities of such series to be due and payable immediately. Upon
any such declaration the amounts due and payable on the Securities of such
series, as determined in accordance with the next succeeding paragraph, shall be
due and payable immediately. If an Event of Default specified in clause (6) or
(7) of Section 5.01 hereof with respect to the Company or the Guarantor occurs,
the principal of and premium, if any, and accrued and unpaid interest and
Liquidated Damages, if any, on all Securities then outstanding shall ipso facto
become and be immediately due and payable without any declaration, notice or
other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment for payment of the money due has been obtained by the Trustee as hereinafter in this Article V provided, 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:
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and Liquidated Damages, if any, and any interest thereon at the rate or rates prescribed therefor in such Securities or in this Indenture,
(C) to the extent that payment of such interest is lawful, interest upon overdue interest and overdue Liquidated Damages, if any, at the rate or rates prescribed therefor in such Securities or in this Indenture, 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 Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.04.
No such rescission shall affect any subsequent Default or impair any right consequent thereon.
If the maturity of the Securities of any series is accelerated pursuant to this Section 5.02, 100% of the principal amount thereof shall become due and payable plus premium, if any, and accrued interest and Liquidated Damages, if any, to the date of payment.
SECTION 5.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of, or premium, if any, or interest on the Securities or to enforce the performance of any provision of the Securities, this Indenture or the Registration Rights Agreement.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
SECTION 5.04 Waiver of Existing Defaults.
Subject to Sections 5.07 and 8.02 hereof, the Holders of a majority in principal amount of the Securities of any series then outstanding by notice to the Trustee may waive an existing Default or Event of Default and its consequences (including waivers obtained in connection with a tender offer or exchange offer for the Securities of such series or a solicitation of consents in respect of the Securities of such series,
provided that in each case such offer or solicitation is made to all Holders of
the Securities of such series then outstanding on equal terms), except (1) a
continuing Default or Event of Default in the payment of the principal of, or
premium, if any, Liquidated Damages, if any, or interest on the Securities of
any series or (2) a continuing Default in respect of a provision that under
Section 8.02 hereof cannot be amended without the consent of each Holder
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 impair any right consequent thereon.
SECTION 5.05 Control by Majority.
The Holders of a majority in principal amount of the Securities of any series then outstanding may 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 it hereunder with respect to such series. However, the Trustee may refuse to follow any direction that conflicts with applicable law or this Indenture, that the Trustee determines may be unduly prejudicial to the rights of other Holders, or that may involve the Trustee in personal liability; provided, however, that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. Prior to taking any action hereunder, the Trustee shall be entitled to indemnification satisfactory to it in its sole discretion against all losses and expenses caused by taking or not taking such action.
SECTION 5.06 Limitations on Suits.
Subject to Section 5.07 hereof, a Holder may pursue a remedy with respect to this Indenture (including the Guarantees) or the Securities of any series only if:
(1) such Holder gives to the Trustee written notice of a continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the Securities of such series then outstanding make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in principal amount of the Securities of such series do not give the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder.
SECTION 5.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Security to receive payment of principal of, and premium, if any, and interest on the Security, on or after the respective due dates expressed in the Security, or to bring suit for the enforcement of any such payment on or after such respective dates, is absolute and unconditional and shall not be impaired or affected without the consent of such Holder.
SECTION 5.08 Collection Suit by Trustee.
If an Event of Default specified in clause (1) or (2) of Section 5.01 hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company and the Guarantor for the amount of principal and premium, if any, and interest (and Liquidated Damages, if any) remaining unpaid on any series of Securities, and interest on overdue principal, premium, if any, and Liquidated Damages, if any and, to the extent lawful, interest on overdue interest (and Liquidated Damages, if any), and 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.
SECTION 5.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers
or documents and to take such actions, including participating as a member,
voting or otherwise, of any committee of creditors, 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 the Holders allowed in any judicial
proceedings relative to the Company and the Guarantor or their respective
creditors or properties and shall be entitled and empowered to collect, receive
and distribute any money or other property payable or deliverable on any such
claims and any Custodian in any such judicial proceeding is hereby authorized by
each Holder 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, its agents and counsel, and
any other amounts due the Trustee under Section 6.07 hereof. To the extent that
the payment of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties which the Holders of the Securities of any series may be entitled to
receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 5.10 Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 6.07 hereof;
Second: to Holders for amounts due and unpaid on the Securities for principal, premium, if any, Liquidated Damages, if any, and interest ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for principal, premium, if any, Liquidated Damages, if any, and interest, respectively; and
Third: to the Company and the Guarantor.
The Trustee, upon prior written notice to the Company and the Guarantor, may fix a record date and payment date for any payment to Holders pursuant to this Article.
SECTION 5.11 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 attorneys' fees, 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 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 5.07 hereof, or a suit by a Holder or Holders of more than 10% in principal amount of the Securities of any series then outstanding.
ARTICLE VI
TRUSTEE
SECTION 6.01 Duties of Trustee.
(a) If 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 such exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) 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. However, the Trustee shall examine such certificates and opinions to determine whether or not, on their face, they appear to conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 5.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability. The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. All money received by the Trustee shall, until applied as herein provided, be held in trust for the payment of the principal of, and premium if any, and interest on the Securities.
SECTION 6.02 Rights of Trustee.
(a) The Trustee may rely conclusively on any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may consult with counsel 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.
(c) The Trustee may act through agents or attorneys and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company or the Guarantor shall be sufficient if signed by an Officer of the Company or the Guarantor.
(f) The Trustee is not required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture.
(g) In the event the Trustee receives inconsistent or conflicting requests and indemnity from two or more groups of holders of Securities of a series, each representing less than a majority in aggregate principal amount of the Securities outstanding of such series, pursuant to the provisions of this Indenture, the Trustee may determine what action, if any, shall be taken.
(h) The Trustee's immunities and protections from liability and its right to indemnification in connection with the performance of its duties under this Indenture shall extend and be enforceable by the Trustee in each of its capacities hereunder and shall extend to the Trustee's officers, directors, agents, attorneys and employees. Such immunities and protections and right to indemnity, together with the Trustee's right to compensation, shall survive the Trustee's resignation or removal, the discharge of this Indenture and final payment of the Securities.
(i) The permissive right of the Trustee to take the actions permitted by the Indenture shall not be construed as an obligation or duty to do so.
(j) Except for information provided by the Trustee concerning the Trustee, the Trustee shall have no responsibility for any information in any offering memorandum or other disclosure material distributed with respect to the Securities, and the Trustee shall have no responsibility for compliance with any state or federal securities laws in connection with the Securities.
(k) The Trustee may request that the Company deliver an Officers' Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers' Certificate may be signed by any person authorized to sign an Officers' Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
SECTION 6.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company, the Guarantor or any of their Affiliates with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. However, the Trustee is subject to Sections 6.10 and 6.11 hereof.
SECTION 6.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company's use of the proceeds from the Securities or any money paid to the Company or upon the Company's direction under any provision hereof, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee and it shall not be responsible for any statement or recital herein or any statement in the Securities other than its certificate of authentication.
SECTION 6.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and it is known to the Trustee, the Trustee shall mail to Holders a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, or premium, if any, Liquidated Damages, if any, or interest on any Security, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Holders.
SECTION 6.06 Reports by Trustee to Holders.
Within 60 days after August 1 of each year, beginning with August 1, 2002, the Trustee shall mail to Holders a brief report dated as of August 1 of such year that complies with TIA Section 313(a); provided, however, that if no event described in TIA Section 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted. The Trustee also shall comply with TIA Section 313(b). The Trustee shall also transmit by mail all reports as required by TIA Sections 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders shall be filed with the SEC and each securities exchange, if any, on which the Securities are listed. The Company shall notify the Trustee if and when the Securities are listed on any stock exchange.
SECTION 6.07 Compensation and Indemnity.
The Company and the Guarantor jointly and severally agree to pay to the Trustee from time to time such compensation as agreed to by the Company, the Guarantor and the Trustee, for its acceptance of this Indenture and its services hereunder. The Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company and the Guarantor jointly and severally agree to reimburse the Trustee upon request for all reasonable disbursements, advances and expenses incurred by it. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company and the Guarantor jointly and severally agree to indemnify the Trustee or any predecessor Trustee and their agents for and to hold them harmless against any and all loss, liability damage, claims, or expense (including taxes, other than taxes based upon, measured by or determined by the income of the Trustee) incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of defending itself against any claim (whether asserted by the Company, the Guarantor, any Holder or any other Person), except as set forth in the next paragraph. The Trustee shall notify the Company and the Guarantor promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company and the Guarantor shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent.
Neither the Company nor the Guarantor shall be obligated to reimburse any expense or indemnify against any loss or liability incurred by the Trustee through negligence or bad faith.
To secure the payment obligations of the Company and the Guarantor in this Section 6.07, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay principal of, and premium, if any, and interest and Liquidated Damages, if any, on the Securities. Such lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 5.01(6) or (7) hereof occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 6.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment as provided in this Section 6.08.
The Trustee may resign and be discharged from the trust hereby created by so notifying the Company and the Guarantor. The Holders of a majority in principal amount of the then outstanding Securities may remove the Trustee by so notifying the Trustee and the Company. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company and the Guarantor shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the Securities then outstanding may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least 10% in principal amount of the Securities then outstanding may petition any court of competent jurisdiction at the expense of the Company for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10 hereof, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company and the Guarantor. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 6.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 6.08 hereof, the obligations of the Company and the Guarantor under Section 6.07 hereof shall continue for the benefit of the retiring Trustee.
SECTION 6.09 Successor Trustee by Merger, etc.
Subject to Section 6.10 hereof, if the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee; provided, however, that in the case of a transfer of all or substantially all of its corporate trust business to another corporation, the transferee corporation expressly assumes all of the Trustee's liabilities hereunder.
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; and in case at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have.
SECTION 6.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia and authorized under such laws to exercise corporate trust power, shall be subject to supervision or examination by Federal or State (or the District of Columbia) authority and shall have, or be a Subsidiary of a bank or bank holding company having, a combined capital and surplus of at least $50 million as set forth in its most recent published annual report of condition.
The Indenture shall always have a Trustee who satisfies the requirements of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is subject to and shall comply with the provisions of TIA Section 310(b) during the period of time required by this Indenture. Nothing in this Indenture shall prevent the Trustee from filing with the SEC the application referred to in the penultimate paragraph of TIA Section 310(b).
SECTION 6.11 Preferential Collection of Claims Against Company.
The Trustee is subject to and shall comply with the provisions of TIA
Section 311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
ARTICLE VII
DISCHARGE OF INDENTURE
SECTION 7.01 Termination of Company's Obligations.
(a) This Indenture shall cease to be of further effect with respect to Securities of a series (except that the Company's and the Guarantor's obligations under Section 6.07 hereof and the Trustee's and Paying Agent's obligations under Section 7.03 hereof shall survive), and the Trustee, on demand of the Company, shall execute proper instruments acknowledging the satisfaction and discharge of this Indenture with respect to such series, when:
(1) either
(A) all outstanding Securities of such series theretofore authenticated and issued (other than destroyed, lost or stolen Securities that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(B) all outstanding 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,
and the Company, in the case of clause (i) or (ii) above, has deposited or caused to be deposited with the Trustee as funds (immediately available to the Holders in the case of clause (i)) in trust for such purpose an amount which, together with earnings thereon, will be sufficient to pay and discharge the entire indebtedness on such Securities of such series for principal, premium, if any, Liquidated Damages, if any, and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity, as the case may be;
(2) the Company has paid all other sums payable by it hereunder with respect to such series; and
(3) the Company has delivered to the Trustee an Officers' Certificate stating that all conditions precedent to satisfaction and discharge of this Indenture with respect to such series have been complied with, together with an Opinion of Counsel to the same effect.
(b) The Company and the Guarantor may, subject as provided herein, terminate all of their obligations under this Indenture with respect to Securities of a series (and the Guarantee thereof) if:
(1) the Company has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust for the purpose of making the following payments dedicated solely to the benefit of the Holders (i) cash in an amount, or (ii) U.S. Government Obligations or (iii) a combination thereof, 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, without consideration of the reinvestment of any such amounts and after payment of all taxes or other charges or assessments in respect thereof payable by the Trustee, the principal of, and premium, if any, Liquidated Damages, if any, and interest on all Securities of such series on each date that such principal, premium, if any, Liquidated Damages, if any, or interest is due and payable and to pay all
other sums payable by it hereunder; provided that the Trustee shall have been irrevocably instructed to apply such money and/or the proceeds of such U.S. Government Obligations to the payment of said principal, premium, if any, Liquidated Damages, if any, and interest with respect to the Securities of such series as the same shall become due;
(2) the Company has delivered to the Trustee an Officers' Certificate stating that all conditions precedent to satisfaction and discharge of this Indenture with respect to Securities of such series have been complied with, and an Opinion of Counsel to the same effect;
(3) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as clauses (6) and
(7) of Section 5.01 hereof 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);
(4) the Company shall have delivered to the Trustee an Opinion of Counsel from a nationally recognized counsel acceptable to the Trustee or a tax ruling to the effect that the Holders of Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of the Company's exercise of its option under this Section 7.01(b) and will be subject to Federal income tax on the same amount and in the same manner and at the same times as would have been the case if such option had not been exercised;
(5) such deposit and discharge will not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company or the Guarantor is a party or by which it is bound;
(6) such deposit and discharge shall not cause the Trustee to have a conflicting interest as defined in TIA Section 310(b); and
(7) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that after the passage of 91 days following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally.
In such event, this Indenture shall cease to be of further effect with respect to Securities of such series (except as provided in the next succeeding paragraph), and the Trustee, on demand of the Company, shall execute proper instruments acknowledging satisfaction and discharge under this Indenture.
However, the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 3.01, 3.02, 3.03, 4.01, 6.07, 6.08, 7.01 and 7.04 hereof, the Company's and the Guarantor' obligations in Sections 4.01, 6.07, 7.04 and 9.01 hereof and the Trustee's and Paying Agent's obligations in Section 7.03 hereof shall survive until the Securities of such series are no longer outstanding. Thereafter, only the Company's and the Guarantor's obligations in Section 6.07 hereof and the Trustee's and Paying Agent's obligations in Section 7.03 hereof shall survive.
After such irrevocable deposit made pursuant to this Section 7.01(b) and satisfaction of the other conditions set forth herein, the Trustee upon request shall acknowledge in writing the discharge of the Company's obligations under this Indenture except for those surviving obligations specified above.
In order to have money available on a payment date to pay principal of, premium, if any, Liquidated Damages, if any, or interest on the Securities of such series, the U.S. Government Obligations shall be payable as to principal or interest on or before such payment date in such amounts as will provide the necessary money. U.S. Government Obligations shall not be callable at the issuer's option.
SECTION 7.02 Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and the Company shall hold in trust money or U.S. Government Obligations deposited with it pursuant to Section 7.01 hereof. It shall apply the deposited money and the money from U.S. Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of, premium, if any, Liquidated Damages, if any, and interest on Securities of the series with respect to which the deposit was made.
SECTION 7.03 Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company upon written request any excess money or securities held by them at any time.
Subject to the requirements of any applicable abandoned property laws, the Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment of principal, premium, if any, Liquidated Damages, if any, or interest that remains unclaimed for two years after the date upon which such payment shall have become due; provided, however, that the Company shall have either caused notice of such payment to be mailed to each Holder entitled thereto no less than 30 days prior to such repayment or within such period shall have published such notice in a financial newspaper of widespread circulation published in The City of New York. After payment to the Company, Holders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another Person, and all liability of the Trustee and the Paying Agent with respect to such money shall cease.
SECTION 7.04 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or U. S. Government Obligations in accordance with Section 7.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Company and the Guarantor under this Indenture and the Securities of the applicable series shall be revived and reinstated as though no deposit had occurred pursuant to Section 7.01 hereof until such time as the Trustee or the Paying Agent is permitted to apply all such money or U. S. Government Obligations in accordance with Section 7.01 hereof; provided, however, that if the Company or the Guarantor has made any payment of principal of or interest on any Securities of such series because of the reinstatement of its obligations, the Company or the Guarantor shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee or the Paying Agent.
ARTICLE VIII
AMENDMENTS
SECTION 8.01 Without Consent of Holders.
The Company, the Guarantor and the Trustee may amend or supplement this Indenture or any of the Securities or waive any provision hereof or thereof without the consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Sections 4.01 and 4.02 hereof;
(3) to provide for uncertificated Securities in addition to or in place of certificated Securities;
(4) to add any additional Events of Default in respect of all or any series of Securities;
(5) to add to, change or eliminate any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons;
(6) 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;
(7) to secure the Securities of any series pursuant to the requirements of Section 3.09 or otherwise;
(8) to comply with any requirement in order to effect or maintain the qualification of this Indenture under the TIA;
(9) to comply with any requirements of the SEC in connection with qualifying this Indenture under the TIA;
(10) to add to the covenants of the Company or the Guarantor for the benefit of the Holders or to surrender any right or power herein conferred upon the Company or the Guarantor; or
(11) to make any change that does not adversely affect the rights hereunder of any Holder in any material respect.
Upon the request of the Company and the Guarantor accompanied by a resolution of the Board of Directors of the Company and of the Guarantor authorizing the execution of any such supplemental indenture, and upon receipt by the Trustee of the documents described in Section 8.06 hereof, the Trustee shall join with the Company and the Guarantor in the execution of any supplemental indenture authorized or permitted by the terms of this Indenture and make any further appropriate agreements and stipulations that may be therein contained. After an amendment, supplement or waiver under this Section 8.01 becomes effective, the Company shall mail to the Holders of each Security affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
SECTION 8.02 With Consent of Holders.
Except as provided below in this Section 8.02, the Company, the Guarantor and the Trustee may amend or supplement this Indenture with respect to the Securities of a series or the Securities of any series with the written consent (including consents obtained in connection with a tender offer or exchange offer for the Securities of such series or a solicitation of consents in respect of the Securities of such series, provided that in each case such offer or solicitation is made to all Holders of the Securities of such series then outstanding on equal terms) of the Holders of at least a majority in principal amount of the Securities of such series then outstanding.
Upon the request of the Company and the Guarantor accompanied by a resolution of the Board of Directors of the Company and of the Guarantor authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of the Holders as aforesaid, and
upon receipt by the Trustee of the documents described in Section 8.06 hereof, the Trustee shall join with the Company and the Guarantor in the execution of such supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section 8.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
The Holders of a majority in principal amount of the Securities of any series then outstanding may waive compliance in a particular instance by the Company or the Guarantor with any provision of this Indenture or the Securities of such series (including waivers obtained in connection with a tender offer or exchange offer for the Securities of such series or a solicitation of consents in respect of the Securities of such series, provided that in each case such offer or solicitation is made to all Holders of the Securities of such series then outstanding on equal terms).
Without the consent of Holders of at least two-thirds in principal amount of the Securities of any series then outstanding, an amendment, supplement or waiver under this Section may not:
(a) reduce the rate of or change the time for payment of Liquidated Damages, if any, on any Security of such series;
(b) impair the right to institute suit for the enforcement of any payment of Liquidated Damages, if any, on any Security of such series, except as limited by Section 5.06 hereof; or
(c) waive a continuing Default or Event of Default in the payment of Liquidated Damages, if any, on the Securities of such series.
Without the consent of each Holder affected, an amendment, supplement or waiver under this Section may not:
(1) reduce the percentage of principal amount of the Securities of any series whose Holders must consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest, including default interest, on any Security;
(3) reduce the principal of or change the fixed maturity of any Security or alter the premium or other provisions with respect to redemption under Section 10.07 or specified in the Securities;
(4) change the place of payment or make any Security payable in money other than that stated in the Security;
(5) impair the right to institute suit for the enforcement of any payment of principal of, or premium, if any, or interest on any Security pursuant to Sections 5.07 and 5.08 hereof, except as limited by Section 5.06 hereof;
(6) make any change in the percentage of principal amount of the Securities of any series necessary to waive compliance with certain provisions of this Indenture pursuant to Section 5.04 or 5.07 hereof or this clause of this Section 8.02; or
(7) waive a continuing Default or Event of Default in the payment of principal of, or premium, if any, or interest on the Securities of any series.
The right of any Holder to participate in any consent required or sought pursuant to any provision of this Indenture (and the obligation of the Company to obtain any such consent otherwise required from such Holder) may be subject to the requirement that such Holder shall have been the Holder of record of the Securities with respect to which such consent is required or sought as of a date identified by the Trustee in a notice furnished to Holders in accordance with the terms of this Indenture.
SECTION 8.03 Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of any series shall comply in form and substance with the TIA as then in effect.
SECTION 8.04 Revocation and Effect of Consents.
A consent to an amendment (which includes a supplement) or waiver by a Holder is a continuing consent by the Holder and every subsequent Holder of a Security of any series or portion of a Security of such series that evidences the same debt as the consenting Holder's Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his or her Security or portion of a Security if the Trustee receives written notice of revocation at any time prior to (but not after) the date the Trustee receives an Officers' Certificate certifying that the Holders of the requisite principal amount of Securities have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment or waiver or to take any other action with respect to the Securities of any series under this Indenture. If a record date is fixed, then notwithstanding the provisions of the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No consent shall be valid or effective for more than 90 days after such record date unless consents from Holders of the principal amount of the Securities of such series required hereunder for such amendment or waiver to be effective shall have also been given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless it is of the type described in any of clauses (1) through (7) of Section 8.02 hereof. In such case, the amendment or waiver shall bind each Holder who has consented to it and every subsequent Holder that evidences the same debt as the consenting Holder's Security.
SECTION 8.05 Notation on or Exchange of Securities.
If an amendment changes the terms of a Security, the Trustee may require the Holder of the Security to deliver it to the Trustee. The Trustee may place an appropriate notation on the Security regarding the changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security that reflects the changed terms. Failure to make the appropriate notation or to issue a new Security shall not affect the validity of such amendment.
SECTION 8.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, waiver or supplemental indenture authorized pursuant to this Article if the amendment, waiver or supplemental indenture does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment, waiver or supplemental indenture, the Trustee shall receive, and subject to Section 6.01 hereof, shall be fully protected in relying upon, an Opinion of Counsel and an Officers' Certificate, as conclusive evidence that such amendment, waiver or supplemental indenture is authorized or permitted by this Indenture, that it is not inconsistent herewith, and that it will be valid and binding upon the Company and the Guarantor in accordance with its terms.
ARTICLE IX
GUARANTEES OF SECURITIES
SECTION 9.01 Unconditional Guarantees.
(a) For value received, the Guarantor hereby fully, irrevocably, unconditionally and absolutely guarantees to the Holders and to the Trustee the due and punctual payment of the principal of, and premium, if any, Liquidated Damages, if any, and interest on the Securities and all other amounts due and payable under this Indenture and the Securities by the Company (including, without limitation, all costs and expenses (including reasonable legal fees and disbursements) incurred by the Trustee or the Holders in connection with the enforcement of this Indenture and the Guarantees) (collectively, the "Indenture Obligations"), when and as such principal, premium, if any, Liquidated Damages, if any, and interest and such other amounts shall become due and payable, whether at the Stated Maturity, upon redemption or by declaration of acceleration or otherwise, according to the terms of the Securities and this Indenture. The guarantees by the Guarantor set forth in this Article IX are referred to herein as the "Guarantees." Without limiting the generality of the foregoing, the Guarantor's liability shall extend to all amounts that constitute part of the Indenture Obligations and would be owed by the Company under this Indenture and the Securities but for the fact that they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Company.
(b) Failing payment when due of any amount guaranteed pursuant to the Guarantees, for whatever reason, the Guarantor will be obligated to pay the same immediately to the Trustee, without set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise). Each Guarantee hereunder is intended to be a general, unsecured, senior obligation of the Guarantor and will rank pari passu in right of payment with all Indebtedness of the Guarantor that is not, by its terms, expressly subordinated in right of payment to the Guarantee of the Guarantor. The Guarantor hereby agrees that its obligations hereunder shall be full, irrevocable, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantees or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder 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 the Guarantor. The Guarantor hereby agrees that in the event of a default in payment of the principal of, or premium, if any, Liquidated Damages, if any, or interest on the Securities of any series or any other amounts payable under this Indenture and the Securities by the Company, whether at the Stated Maturity, upon redemption or by declaration of acceleration or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 5.06 hereof, by the Holders, on the terms and conditions set forth in this Indenture, directly against the Guarantor to enforce the Guarantees without first proceeding against the Company.
(c) To the fullest extent permitted by applicable law, the obligations of the Guarantor under this Article IX shall be as aforesaid full, irrevocable, unconditional and absolute and shall not be impaired, modified, discharged, released or limited by any occurrence or condition whatsoever, including, without limitation, (i) any compromise, settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in, any of the obligations and liabilities of the Company or the Guarantor contained in any of the Securities or this Indenture, (ii) any impairment, modification, release or limitation of the liability of
the Company, the Guarantor or any of their estates in bankruptcy, or any remedy
for the enforcement thereof, resulting from the operation of any present or
future provision of any applicable Bankruptcy Law, as amended, or other statute
or from the decision of any court, (iii) the assertion or exercise by the
Company, the Guarantor or the Trustee of any rights or remedies under any of the
Securities or this Indenture or their delay in or failure to assert or exercise
any such rights or remedies, (iv) the assignment or the purported assignment of
any property as security for any of the Securities, including all or any part of
the rights of the Company or the Guarantor under this Indenture, (v) the
extension of the time for payment by the Company or the Guarantor of any
payments or other sums or any part thereof owing or payable under any of the
terms and provisions of any of the Securities or this Indenture or of the time
for performance by the Company or the Guarantor of any other obligations under
or arising out of any such terms and provisions or the extension or the renewal
of any thereof, (vi) the modification or amendment (whether material or
otherwise) of any duty, agreement or obligation of the Company or the Guarantor
set forth in this Indenture, (vii) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all of the
assets, marshaling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar proceeding
affecting, the Company or any of the Guarantor or any of their respective
assets, or the disaffirmance of any of the Securities, the Guarantees or this
Indenture in any such proceeding, (viii) the release or discharge of the Company
or the Guarantor from the performance or observance of any agreement, covenant,
term or condition contained in any of such instruments by operation of law, (ix)
the unenforceability of any of the Securities, the Guarantees or this Indenture,
(x) any change in the name, business, capital structure, corporate existence, or
ownership of the Company or the Guarantor, or (xi) any other circumstance which
might otherwise constitute a defense available to, or a legal or equitable
discharge of, a surety or the Guarantor.
(d) The Guarantor hereby (i) waives diligence, presentment, demand of
payment, notice of acceptance, filing of claims with a court in the event of the
merger, insolvency or bankruptcy of the Company or the Guarantor, and all
demands and notices whatsoever, (ii) acknowledges that any agreement, instrument
or document evidencing the Guarantees may be transferred and that the benefit of
its obligations hereunder shall extend to each holder of any agreement,
instrument or document evidencing the Guarantees without notice to them and
(iii) covenants that its Guarantee will not be discharged except by complete
performance of the Guarantees. The Guarantor further agrees that if at any time
all or any part of any payment theretofore applied by any Person to any
Guarantee is, or must be, rescinded or returned for any reason whatsoever,
including without limitation, the insolvency, bankruptcy or reorganization of
the Guarantor, such Guarantee shall, to the extent that such payment is or must
be rescinded or returned, be deemed to have continued in existence
notwithstanding such application, and the Guarantees shall continue to be
effective or be reinstated, as the case may be, as though such application had
not been made.
(e) The Guarantor shall be subrogated to all rights of the Holders and the Trustee against the Company in respect of any amounts paid by the Guarantor pursuant to the provisions of this Indenture; 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 with respect to any of the Securities until all of the Securities and the Guarantees thereof shall have been indefeasibly paid in full or discharged.
(f) A director, officer, employee or stockholder, as such, of the Guarantor shall not have any liability for any obligations of the Guarantor under this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation.
(g) No failure to exercise and no delay in exercising, on the part of the Trustee or the Holders, any right, power, privilege or remedy under this Article IX and the Guarantees shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power, privilege or remedy preclude any other or further exercise thereof, or the exercise of any other rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative and not exclusive of any rights or remedies provided in law or equity. Nothing contained in this Article IX shall limit the right of the Trustee or the Holders to take any
action to accelerate the maturity of the Securities pursuant to Article V or to pursue any rights or remedies hereunder or under applicable law.
SECTION 9.02 Execution and Delivery of Notation of Guarantees.
To further evidence the Guarantees, the Guarantor hereby agrees that a notation of such Guarantees shall be endorsed on each Security authenticated and delivered by the Trustee and executed by either manual or facsimile signature of an Officer of the Guarantor.
The Guarantor hereby agrees that its Guarantees shall remain in full force and effect notwithstanding any failure to endorse on each Security a notation relating to the Guarantee thereof.
If an Officer of a Guarantor whose signature is on this Indenture or a Security no longer holds that office at the time the Trustee authenticates such Security or at any time thereafter, the Guarantor's Guarantee of such Security shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of any Guarantee set forth in this Indenture on behalf of the Guarantor.
ARTICLE X
REDEMPTION
SECTION 10.01 Notices to Trustee.
If the Company elects to redeem the Securities of any series pursuant to the redemption provisions of Section 10.07, it shall furnish to the Trustee, at least 45 days but not more than 60 days before a Redemption Date (unless the Trustee consents in writing to a shorter period of at least 30 days prior to the Redemption Date), an Officers' Certificate setting forth the Redemption Date, the principal amount of such Securities to be redeemed and the Redemption Price.
SECTION 10.02 Selection of Securities to be Redeemed.
If less than all of the Securities of a series are to be redeemed, the Trustee shall select the Securities of such series to be redeemed by such method as the Trustee in its sole discretion shall deem fair and appropriate. The particular Securities of such series to be redeemed shall be selected, unless otherwise provided herein, not less than 30 days nor more than 60 days prior to the Redemption Date by the Trustee from the outstanding Securities of such series not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Securities of such series selected for redemption and, in the case of any Security selected for partial redemption, the principal amount thereof to be redeemed. Securities and portions of them selected shall be in amounts of $1,000 or whole multiples of $1,000. Except as provided in the preceding sentence, provisions of this Indenture that apply to Securities called for redemption also apply to portions of Securities called for redemption.
SECTION 10.03 Notices to Holders.
(a) At least 30 days but not more than 60 days before a Redemption Date, the Company shall mail in conformity with Section 11.02 a notice of redemption to each Holder whose Securities are to be redeemed.
The Notice shall identify the Securities to be redeemed (including CUSIP numbers, if any) and shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if any Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the Redemption Date, upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion will be issued;
(iv) the name and address of the Paying Agent;
(v) that Securities called for redemption must be surrendered to the Paying Agent at the address specified in such notice to collect the Redemption Price;
(vi) that unless the Company defaults in making the redemption payment, interest on Securities called for redemption ceases to accrue on and after the Redemption Date and the only remaining right of the Holders is to receive payment of the Redemption Price upon surrender to the Paying Agent of the Securities; and
(vii) the aggregate principal amount of Securities of each series being redeemed.
If any of the Securities to be redeemed is in the form of a Global Security, then the Company shall modify such notice to the extent necessary to accord with the procedures of the Depositary applicable to redemptions.
(b) At the Company's request, the Trustee shall give the notice required in Section 10.03(a) in the Company's name; provided, however, that the Company shall deliver to the Trustee, at least 45 days prior to the Redemption Date (unless the Trustee consents in writing to a shorter period at least 30 days prior to the Redemption Date), an Officers' Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in Section 10.03(a).
SECTION 10.04 Effect of Notices of Redemption.
Once notice of redemption is mailed pursuant to Section 10.03, Securities called for redemption become due and payable on the Redemption Date at the Redemption Price. Upon surrender to the Paying Agent, such Securities shall be paid out at the Redemption Price.
SECTION 10.05 Deposit of Redemption Price.
At or prior to 10:00 am New York City time on the Redemption Date, the Company shall deposit with the Trustee or with the Paying Agent money sufficient to pay the Redemption Price of all Securities to be redeemed on that date. The Trustee or the Paying Agent shall return to the Company any money not required for that purpose less the expenses of the Trustee as provided herein.
If the Company complies with the preceding paragraph, interest on the Securities or portions thereof to be redeemed (whether or not such Securities are presented for payment) will cease to accrue on the applicable Redemption Date. If any Security called for redemption shall not be so paid upon surrender because of the failure of the Company to comply with the preceding paragraph, then interest will be paid on the unpaid principal and premium, if any, from the Redemption Date until such principal and premium are
paid and, to the extent lawful, on any interest not paid on such unpaid principal, in each case at the rate provided in the Securities and in Section 3.01.
SECTION 10.06 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company shall issue and the Trustee shall authenticate for the Holder, at the expense of the Company, a new Security equal in principal amount to the unredeemed portion of the Security surrendered.
SECTION 10.07 Optional Redemption.
The Securities of any series may be redeemed at any time, at the option of the Company, in whole or from time to time in part, at the Redemption Price specified in such Securities.
Any redemption pursuant to this Section 10.07 shall be made, to the extent applicable, pursuant to the provisions of Sections 10.01 through 10.06.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the TIA, the required provision shall control. If this Indenture excludes any provision of the TIA that is required to be included, such provision shall be deemed included herein.
SECTION 11.02 Notices.
Any notice or communication by the Company, the Guarantor or the Trustee to the others is duly given if in writing and delivered in person or mailed by first-class mail (registered or certified, return receipt requested), telecopier or overnight air courier guaranteeing next day delivery, to the other's address:
If to the Company:
Anadarko Finance Company
17001 Northchase Drive
Houston, TX 77060
Attention: Vice President and Treasurer
Telecopier No. (281) 863-7077
If to the Guarantor:
Anadarko Petroleum Corporation
17001 North Chase Drive
Houston, Texas 77060
Attention: Vice President and Treasurer
Telecopier No. (281) 863-7077
If to the Trustee:
The Bank of New York
101 Barclay Street, 21 West
New York, New York 10286
Telecopier No. (212) 815-5915
Attention: Corporate Trust Administration
Each of the Company, the Guarantor and the Trustee by notice to the others may designate additional or different addresses for subsequent notices or communications.
All notices and communications shall be deemed to have been duly given:
at the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Notwithstanding the foregoing, notices to the Trustee shall be effective only
upon receipt.
Any notice or communication to a Holder shall be mailed by first-class mail, postage prepaid, to the Holder's address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company or the Guarantor mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.
All notices or communications, including without limitation notices to the Trustee or the Company or the Guarantor by Holders, shall be in writing, except as set forth below, and in the English language.
In case by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impossible to mail any notice required by this Indenture, then such method of notification as shall be made with the approval of the Trustee shall constitute a sufficient mailing of such notice.
SECTION 11.03 Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to their rights under this Indenture or the Securities. The Company, the Guarantor, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c).
SECTION 11.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or the Guarantor to the Trustee to take any action under this Indenture, the Company or the Guarantor shall, if requested by the Trustee, furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set forth in Section 11.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set forth in Section 11.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with.
Notwithstanding the foregoing, no such Opinion of Counsel shall be required in connection with the issuance of the Original Securities pursuant to the Offering.
SECTION 11.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion has read such covenant or condition;
(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 such Person, 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 or not, in the opinion of such Person, such condition or covenant has been complied with.
SECTION 11.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or the Paying Agent may make reasonable rules and set reasonable requirements for its functions.
SECTION 11.07 Legal Holidays.
If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
SECTION 11.08 No Recourse Against Others.
A director, officer, employee or stockholder of the Company or the Guarantor, as such, shall not have any liability for any obligations of the Company or the Guarantor under the Securities or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and release shall be part of the consideration for the issue of the Securities.
SECTION 11.09 Governing Law.
This Indenture and the Securities shall be governed by and constructed in accordance with the laws of the State of New York.
SECTION 11.10 Consent to Jurisdiction and Service of Process.
The Company is not organized under the laws the United States (including the States thereof and the District of Columbia) and therefore hereby appoints the principal office of CT Corporation System in The City of New York which, on the date hereof, is located at 111 Eighth Avenue, New York, New York 10011, as the authorized agent thereof (the "Authorized Agent") upon whom process may be served in any action, suit or proceeding arising out of or based on this Indenture or the Securities which may be instituted in the Supreme Court of the State of New York or the United States District Court for the Southern District of New
York, in either case in The Borough of Manhattan, The City of New York, by the Holder of any Security, and to the fullest extent permitted by applicable law, the Company hereby waives any objection which it may now or hereafter have to the laying of venue of any such proceeding and expressly and irrevocably accepts and submits, for the benefit of the Holders from time to time of the Securities, to the nonexclusive jurisdiction of any such court in respect of any such action, suit or proceeding, for itself and with respect to its properties, revenues and assets. Such appointment shall be irrevocable unless and until the appointment of a successor authorized agent for such purpose, and such successor's acceptance of such appointment, shall have occurred. The Company agrees to take any and all actions, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent with respect to any such action shall be deemed, in every respect, effective service of process upon the Company. Notwithstanding the foregoing, any action against the Company arising out of or based on any Security may also be instituted by the Holder of such Security in any court in the jurisdiction of organization of the Company, and the Company expressly accepts the jurisdiction of any such court in any such action. The Company shall require the Authorized Agent to agree in writing to accept the foregoing appointment as agent for service of process.
SECTION 11.11 Waiver of Immunity.
To the extent that the Company or any of its properties, assets or revenues may have or may hereafter become entitled to, or have attributed to it, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief in any thereof, from set-off or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution of judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Indenture or the Securities, the Company, to the maximum extent permitted by law, hereby irrevocably and unconditionally waives, and agrees not to plead or claim, any such immunity and consents to such relief and enforcement.
SECTION 11.12 Judgment Currency.
The Company agrees to indemnify the Trustee and each Holder against any loss incurred by it as a result of any judgment or order being given or made and expressed and paid in a currency (the "Judgment Currency") other than United States dollars and as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the Judgment Currency for the purpose of such judgment or order and (ii) the spot rate of exchange in The City of New York at which the Trustee or such Holder on the date of payment of such judgment or order is able to purchase United States dollars with the amount of the Judgment Currency actually received by the Trustee or such Holder. The foregoing indemnity shall constitute a separate and independent obligation of the Company and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term "spot rate of exchange" shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, United States dollars.
SECTION 11.13 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company, the Guarantor or any other Subsidiary of the Guarantor. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.14 Successors.
All agreements of the Company and the Guarantor in this Indenture and the Securities shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successor.
SECTION 11.15 Severability.
In case any provision in this Indenture 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.
SECTION 11.16 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
SECTION 11.17 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
Company:
ANADARKO FINANCE COMPANY
By: /s/ ALBERT L. RICHEY
------------------------------------
Name: Albert L. Richey
Title: Vice President and Treasurer
|
Guarantor:
ANADARKO PETROLEUM CORPORATION
By: /s/ ALBERT L. RICHEY
------------------------------------
Name: Albert L. Richey
Title: Vice President and Treasurer
|
Trustee:
BANK OF NEW YORK
By: /s/ BEATA HRYNIEWICKA
------------------------------------
Name: Beata Hryniewicka
Title: Assistant Treasurer
|
EXHIBIT A
[FACE OF 10-YEAR SECURITY]
[GLOBAL SECURITIES LEGEND]
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, 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 DEPOSITARY TRUST COMPANY SHALL ACT AS THE DEPOSITARY UNTIL A SUCCESSOR SHALL BE APPOINTED BY THE COMPANY AND THE REGISTRAR. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
[TRANSFER RESTRICTED SECURITIES LEGEND]
[THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF 1933"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933;
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OF 1933, (C) TO A NON-U.S. PERSON OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OF 1933, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE) OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.]**
ANADARKO FINANCE COMPANY
6 3/4% Series [A/B] Senior Note due 2011
* This paragraph should be included only if the Security is a Global Security.
** These paragraphs should be included only if the Security is a Transfer Restricted Security.
No. $
--- -----------
Anadarko Finance Company, an unlimited liability company organized
|
under the laws of the province of Nova Scotia, Canada (the "Company"), for value received promises to pay to ___________________________ or registered assigns, the principal sum of $_________ Dollars [or such greater or lesser amount as is indicated on the Schedule of Exchanges of Securities on the other side of this
Security]* on May 1, 2011
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
|
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed manually or by facsimile by its duly authorized officers.
Dated:
ANADARKO FINANCE COMPANY
Certificate of Authentication:
THE BANK OF NEW YORK,
as Trustee, certifies that this is one of the Securities referred
to in the within-mentioned Indenture.
* This phrase should be included only if the Security is a Global Security.
[REVERSE OF 10-YEAR SECURITY]
ANADARKO FINANCE COMPANY
6 3/4% SERIES [A/B] SENIOR NOTE DUE 2011
This Security is one of a duly authorized issue of 6 3/4% Series [A/B] Senior Notes due 2011 (the "Securities") of Anadarko Finance Company, an unlimited liability company organized under the laws of the province of Nova Scotia, Canada (the "Company").
1. Interest. The Company promises to pay interest on the principal amount of this Security at 6 3/4% per annum from April 26, 2001 until maturity. The Company will pay interest semiannually on May 1 and November 1 of each year (each an "Interest Payment Date"), or if any such day is not a Business Day, on the next succeeding Business Day. Interest on the Securities will accrue from the most recent Interest Payment Date on which interest has been paid or, if no interest has been paid, from April 26, 2001; provided that if there is no existing Default in the payment of interest, and if this Security is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest Payment Date shall be November 1, 2001 and interest accrued from April 26, 2001 shall be payable on such date. Further, the Company shall pay interest on overdue principal and premium, if any, from time to time on demand at a rate equal to the interest rate then in effect; it shall pay interest on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Securities (except defaulted interest) to the Persons who are registered Holders of Securities at the close of business on the record date next preceding the Interest Payment Date, even if such Securities are canceled after such record date and on or before such Interest Payment Date. The Holder must surrender this Security to a Paying Agent to collect payments of principal and premium, if any. The Company will pay the principal of, and premium, if any, and interest on the Securities in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Securities represented by a Global Security (including principal, premium, if any, Liquidated Damages, if any, and interest) will be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust Company. The Company will make all payments in respect of a certificated Security (including principal, premium, if any, Liquidated Damages, if any, and interest) by mailing a check to the registered address of each Holder thereof; provided, however, that payments on a certificated Security will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
3. Ranking and Guarantees. The Securities are senior unsecured obligations of the Company and are guaranteed pursuant to guarantees (the "Guarantees") by Anadarko Petroleum Corporation, a Delaware corporation (the "Guarantor"). Each of the Guarantees is a senior unsecured obligation of the Guarantor. Certain limitations to the obligations of the Guarantor are set forth in further detail in the Indenture. References herein to the Indenture or the Securities shall be deemed also to refer to the Guarantees set forth in the Indenture except where the context otherwise requires.
4. Optional Redemption. The Securities may be redeemed at any time, at the option of the Company, in whole or from time to time in part, at a price equal to 100% of their principal amount plus accrued and unpaid interest, if any, to the Redemption Date (subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the Redemption Date) plus the Make-Whole Premium, if any (the "Redemption Price").
The amount of the "Make-Whole Premium" with respect to any Security (or portion thereof) to be redeemed will be equal to the excess, if any, of:
(i) the sum of the present values, calculated as of the Redemption Date, of:
(A) each interest payment that, but for such redemption would have been payable on the Security (or portion thereof) being redeemed on each Interest Payment Date occurring after the Redemption Date (excluding any accrued and unpaid interest for the period prior to the Redemption Date); and
(B) the principal amount that, but for such redemption, would have been payable at the final maturity of the Security (or portion thereof) being redeemed;
over
(ii) the principal amount of the Security (or portion thereof) being redeemed.
The present values of interest and principal payments referred to in clause (i) above will be determined in accordance with generally accepted principles of financial analysis. Such present values will be calculated by discounting the amount of each payment of interest or principal from the date that each such payment would have been payable, but for the redemption, to the Redemption Date at a discount rate equal to the Treasury Yield plus 25 basis points. The Make- Whole Premium will be calculated by an Independent Investment Banker.
For purposes of determining the Make-Whole Premium, "Treasury Yield" means a rate of interest per annum equal to the weekly average yield to maturity of United States Treasury Notes that have a constant maturity that corresponds to the remaining term to maturity of the Securities, calculated to the nearest 1/12 of a year (the "Remaining Term"). The Treasury Yield will be determined as of the third Business Day immediately preceding the applicable Redemption Date. The weekly average yields of United States Treasury Notes will be determined by reference to the most recent statistical release published by the Federal Reserve Bank of New York and designated "H.15(519) Selected Interest Rates" or any successor release (the "H.15 Statistical Release"). If the H.15 Statistical Release sets forth a weekly average yield for United States Treasury Notes having a constant maturity that is the same as the Remaining Term, then the Treasury Yield will be equal to such weekly average yield. In all other cases, the Treasury Yield will be calculated by interpolation, on a straight-line basis, between the weekly average yields on the United States Treasury Notes that have a constant maturity closest to and greater than the Remaining Term and the United States Treasury Notes that have a constant maturity closest to and less than the Remaining Term (in each case as set forth in the H.15 Statistical Release). Any weekly average yields so calculated by interpolation will be rounded to the nearest 1/100 of 1%, with any figure of 1/200% or above being rounded upward. If weekly average yields for United States Treasury Notes are not available in the H.15 Statistical Release or otherwise, then the Treasury Yield will be calculated by interpolation of comparable rates selected by the Independent Investment Banker.
"Independent Investment Banker" means Credit Suisse First Boston Corporation or, if such firm is unwilling or unable to make such calculation, an independent investment banking institution of national standing appointed by the Trustee.
Periodic interest installments with respect to which the Interest Payment Date is on or prior to any Redemption Date will be payable to Holders of record at the close of business on the relevant record dates referred to herein, all as provided in the Indenture.
Notice of redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder of Securities to be redeemed at his registered address. Securities in denominations larger than $1,000 may be redeemed in part but only in whole multiples of $1,000. On or after the Redemption Date interest will cease to accrue on Securities or on the portions thereof called for redemption, as the case may be.
5. Paying Agent and Registrar. Initially, The Bank of New York (the "Trustee"), the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent, Registrar, co-registrar or additional paying agent without notice to any Holder. The Company, the Guarantor, or any of their respective subsidiaries may act in any such capacity.
6. Indenture. The Company issued the Securities under an Indenture dated as of April 26, 2001 (as amended, supplemented or otherwise modified form time to time, the "Indenture") among the Company, the Guarantor and the Trustee. The terms of the Securities include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb), as in effect on the date of execution of the Indenture. The Securities and the Guarantees are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. The Securities are unsecured general obligations of the Company and the Guarantees are unsecured general obligations of the Guarantor. Capitalized terms used but not defined in this Security have the respective meanings given to such terms in the Indenture.
7. Denominations, Transfer, Exchange. The Securities are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not exchange or register the transfer of any Securities during the period between a record date and the corresponding Interest Payment Date.
8. Persons Deemed Owners. The registered Holder of a Security shall be treated as its owner for all purposes.
9. Amendments and Waivers. Subject to certain exceptions and limitations, the Indenture or the Securities may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the then outstanding Securities, and compliance in a particular instance by the Company or the Guarantor with any provision of the Indenture may be waived (other than certain provisions, including any continuing Default or Event of Default in the payment of the principal of, or premium, if any, or interest on the Securities) by the Holders of at least a majority in principal amount of the Securities then outstanding in accordance with the terms of the Indenture. Without the consent of any Holder, the Company, the Guarantor and the Trustee may amend or supplement the Indenture or the Securities to cure any ambiguity, omission, defect or inconsistency; to comply with the Indenture in the case of the merger, consolidation or sale or other disposition of all or substantially all of the assets of the Company or the Guarantor; to provide for uncertificated Securities in addition to or in place of certificated Securities; to add to, change or eliminate the provisions of the Indenture to the extent necessary to facilitate the issuance of Securities in accordance with the Indenture; to change or eliminate any provision of the Indenture when there is no Security outstanding which is entitled to the benefit of such provision; to secure the Securities of any series pursuant to the requirements under the Indenture; to comply with any requirements in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act of 1939, as amended; to comply with any requirements of the SEC in connection with qualifying the Indenture under the TIA; to add to the covenants of the Company or the Guarantor for the benefit of the Holders or to surrender any power conferred upon the Company or the Guarantor; or to make any change that does not adversely affect the rights of any Holder.
The right of any Holder to participate in any consent required or sought pursuant to any provision of the Indenture (and the obligation of the Company to obtain any such consent otherwise required from such Holder) may be subject to the requirement that such Holder shall have been the Holder of record of any Securities with respect to which such consent is required or sought as of a date identified by the Trustee in a notice furnished to Holders in accordance with the terms of the Indenture.
Without the consent of Holders of at least two-thirds in principal amount of the Securities of any series then outstanding, an amendment, supplement or waiver under this Section may not (a) reduce the rate of or change the time for payment of Liquidated Damages, if any, on any Security of such series, (b) impair the right to institute suit for the enforcement of any payment of Liquidated Damages, if any, on any Security of such series, except as limited by Section 5.06 of the Indenture, or (c) waive a continuing Default or Event of Default in the payment of Liquidated Damages, if any, on the Securities of such series.
Without the consent of each Holder affected, the Company may not (i)
reduce the percentage of principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver, (ii) reduce the rate of or change
the time for payment of interest, including default interest, on any Security,
(iii) reduce the principal of or change the fixed maturity of any Security or
alter the premium or other provisions with respect to redemption, (iv) make any
Security payable in money other than that stated in the Security, (v) impair the
right to institute suit for the enforcement of any payment of principal of, or
premium, if any, or interest on any Security, (vi) make any change in the
percentage of principal amount of Securities necessary to waive compliance with
certain provisions of the Indenture or (vii) waive a continuing Default or Event
of Default in the payment of principal of, or premium, if any, or interest on
the Securities.
10. Defaults and Remedies. Events of Default include: default in payment of interest or Liquidated Damages, if any, on the Securities for 60 days; default in payment of principal of, or premium, if any, on the Securities; default in the performance, or breach, of any of its other covenants, warranties or agreements in the Indenture by the Company or the Guarantor for 90 days after written notice by the Trustee or by the Holders of at least 25% of the aggregate principal amount of the Securities then outstanding; a default in the payment of principal or interest in respect of any Funded Debt of the Company or the Guarantor outstanding in an aggregate principal amount in excess of $25 million, and such default shall be continuing for a period of 30 days without the Company or Guarantor effecting a cure of such default, resulting in the acceleration of Maturity of the Funded Debt; certain voluntary or involuntary events involving bankruptcy, insolvency or reorganization of the Company or the Guarantor; and the Guarantee in respect of the Securities ceases to be in full force and effect or becomes unenforceable or invalid or is declared null and void, or the Guarantor denies or disaffirms its obligations under such Guarantee. If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Securities may declare the principal of, and premium, if any, and interest on all the Securities to be immediately due and payable, except that in the case of an Event of Default arising from certain events of bankruptcy, insolvency or reorganization of the Company or the Guarantor, all outstanding Securities become due and payable immediately without further action or notice. The amount due and payable upon the acceleration of any Security is equal to 100% of the principal amount thereof plus premium, if any, and accrued interest to the date of payment. Holders may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee may require indemnity reasonably satisfactory to it before it enforces the Indenture or the Securities. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Securities may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing default (except a default in payment of principal or premium, if any, or interest) if it determines that withholding notice is in their interests. The Company must furnish an annual compliance certificate to the Trustee.
11. Discharge Prior to Maturity. The Indenture shall be discharged and canceled upon the payment of all of the Securities and shall be discharged except for certain obligations upon the irrevocable deposit with the Trustee of funds or U.S. Government Obligations sufficient for such payment.
12. Trustee Dealings with the Company and the Guarantor. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company, the Guarantor or their respective Affiliates, and may otherwise deal with the Company, the Guarantor or their respective Affiliates, as if it were not Trustee.
13. No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company or the Guarantor shall not have any liability for any obligations of the Company or the Guarantor under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities.
14. Authentication. This Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
15. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Securities as a convenience to the Holders of the Securities. No representation is made as to the accuracy of such numbers as printed on the Securities and reliance may be placed only on the other identification numbers printed thereon.
16. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
17. Governing Law. The Indenture and the Securities shall be governed by and constructed in accordance with, the laws of the State of New York.
18. [Additional Rights and Obligations of Holders of Transfer Restricted Securities. In addition to the rights provided to Holders of Securities under the Indenture, Holders of Transfer Restricted Securities shall have all the
rights set forth in the Registration Rights Agreement, dated as of the Issue Date (the "Registration Rights Agreement"), among the Company, the Guarantor and the Initial Purchaser. Each Holder of a Transfer Restricted Security , by his acceptance thereof, acknowledges and agrees to the provisions of the Registration Rights Agreement, including without limitation the obligations of the Holders with respect to a registration and the indemnification of the Company and the Guarantors to the extent provided therein.]**
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Request may be made to:
Anadarko Finance Company
17001 Northchase Drive
Houston, TX 77060
Attention: Vice President and Treasurer
Telecopier No. (281) 863-7077
** This paragraph should be included only if the Security is a Transfer Restricted Security.
FORM OF NOTATION ON SECURITY
RELATING TO GUARANTEE
The Guarantor (which term includes any successor Person in such capacity under the Indenture), has fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture, the due and punctual payment of the principal of, and premium, if any, and interest on the Securities and all other amounts due and payable under the Indenture and the Securities by the Company.
The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to the Guarantees and the Indenture are expressly set forth in Article IX of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee.
Guarantor:
ANADARKO PETROLEUM CORPORATION
ASSIGNMENT FORM
In connection with any transfer of any of the Securities evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144(k) under the Securities Act after the later of the date of original issuance of such Securities and the last date, if any, on which such Securities were owned by the Company or any Affiliate of the Company, the undersigned confirms that such Securities are being transferred as specified below:
CHECK ONE
(1)[ ] to the Guarantor, the Company or a Subsidiary thereof; or
(2)[ ] to a "qualified institutional buyer" (as defined in Rule 144A under the Securities Act of 1933) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or
(3)[ ] outside the United States to a "foreign person" in compliance with Rule 904 of Regulation S under the Securities Act of 1933; or
(4)[ ] pursuant to an effective registration statement under the Securities Act of 1933; or
(5)[ ] pursuant to an exemption from the registration requirements of the Securities Act of 1933, provided by Rule 144 thereunder.
and unless the box below is checked, the undersigned confirms that such Security is not being transferred to an "affiliate" of the Company as defined in Rule 144 under the Securities Act of 1933 (an "Affiliate"):
[ ] The transferee is an Affiliate of the Company.
Unless one of items (1) through (5) above is checked, the Trustee will refuse to register any of the Securities evidenced by this certificate in the name of any person other than the registered Holder thereof; provided, however, that if item (3), or (5) is checked, the Company or the Trustee may require, prior to registering any such transfer of the Securities, in their sole discretion, such written legal opinions, certifications (including an investment letter) and other information as the Trustee or the Company have reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.
If none of the foregoing items are checked, the Trustee or Registrar shall not be obligated to register this Security in the name of any person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 2.06 of the Indenture shall have been satisfied.
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act of 1933 and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned's foregoing representations in order to claim the exemption from registration provided by Rule 144A.
Dated:
---------------------------------- --------------------------------------
Notice: to be executed by an executive
officer***
----------
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*** These paragraphs should be included only if the Security is a Transfer Restricted Security.
SCHEDULE OF EXCHANGES OF SECURITIES***
The following exchanges, redemptions or repurchases of a part of this Global Security have been made:
PRINCIPAL AMOUNT SIGNATURE OF
AMOUNT OF AMOUNT OF OF GLOBAL SECURITY AUTHORIZED
DECREASE IN INCREASE IN FOLLOWING SUCH OFFICER, TRUSTEE OR
DATE OF PRINCIPAL AMOUNT PRINCIPAL AMOUNT DECREASE (OR SECURITIES
TRANSACTION OF GLOBAL SECURITY OF GLOBAL SECURITY INCREASE) CUSTODIAN
----------------- ------------------ ------------------ ------------------ -------------------
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*** This Schedule should be included only if the Security is a Global Security.
EXHIBIT B
[FACE OF 30-YEAR SECURITY]
[GLOBAL SECURITIES LEGEND]
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, 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 DEPOSITARY TRUST COMPANY SHALL ACT AS THE DEPOSITARY UNTIL A SUCCESSOR SHALL BE APPOINTED BY THE COMPANY AND THE REGISTRAR. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]*
[TRANSFER RESTRICTED SECURITIES LEGEND]
[THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF 1933"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933;
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OF 1933, (C) TO A NON-U.S. PERSON OUTSIDE THE UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OF 1933, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF AVAILABLE) OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OF 1933 AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.]***
ANADARKO FINANCE COMPANY
7 1/2% Series [A/B] Senior Note due 2031
* This paragraph should be included only if the Security is a Global Security.
*** These paragraphs should be included only if the Security is a Transfer Restricted Security.
No. $
--- -----------
Anadarko Finance Company, an unlimited liability company organized
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under the laws of the province of Nova Scotia, Canada (the "Company"), for value received promises to pay to ___________________________ or registered assigns, the principal sum of $_________ Dollars [or such greater or lesser amount as is indicated on the Schedule of Exchanges of Securities on the other side of this Security.**] on May 1, 2031.
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed manually or by facsimile by its duly authorized officers.
Dated:
ANADARKO FINANCE COMPANY
Certificate of Authentication:
THE BANK OF NEW YORK,
as Trustee, certifies that this is one
of the Securities referred to in
the within-mentioned Indenture.
** This phrase should be included only if the Security is a Global Security.
[REVERSE OF 30-YEAR SECURITY]
ANADARKO FINANCE COMPANY
7 1/2% SERIES [A/B] SENIOR NOTE DUE 2031
This Security is one of a duly authorized issue of 7 1/2% Series [A/B] Senior Notes due 2031 (the "Securities") of Anadarko Finance Company, an unlimited liability company organized under the laws of the province of Nova Scotia, Canada (the "Company").
1. Interest. The Company promises to pay interest on the principal amount of this Security at 7 1/2% per annum from April 26, 2001 until maturity. The Company will pay interest semiannually on May 1 and November 1 of each year (each an "Interest Payment Date"), or if any such day is not a Business Day, on the next succeeding Business Day. Interest on the Securities will accrue from the most recent Interest Payment Date on which interest has been paid or, if no interest has been paid, from April 26, 2001; provided that if there is no existing Default in the payment of interest, and if this Security is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest Payment Date shall be November 1, 2001 and interest accrued from April 26, 2001 shall be payable on such date. Further, the Company shall pay interest on overdue principal and premium, if any, from time to time on demand at a rate equal to the interest rate then in effect; it shall pay interest on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Securities (except defaulted interest) to the Persons who are registered Holders of Securities at the close of business on the record date next preceding the Interest Payment Date, even if such Securities are canceled after such record date and on or before such Interest Payment Date. The Holder must surrender this Security to a Paying Agent to collect payments of principal and premium, if any. The Company will pay the principal of, and premium, if any, and interest on the Securities in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Securities represented by a Global Security (including principal, premium, if any, Liquidated Damages, if any, and interest) will be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust Company. The Company will make all payments in respect of a certificated Security (including principal, premium, if any, Liquidated Damages, if any, and interest) by mailing a check to the registered address of each Holder thereof; provided, however, that payments on a certificated Security will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
3. Ranking and Guarantees. The Securities are senior unsecured obligations of the Company and are guaranteed pursuant to guarantees (the "Guarantees") by Anadarko Petroleum Corporation, a Delaware corporation (the "Guarantor"). Each of the Guarantees is a senior unsecured obligation of the Guarantor. Certain limitations to the obligations of the Guarantor are set forth in further detail in the Indenture. References herein to the Indenture or the Securities shall be deemed also to refer to the Guarantees set forth in the Indenture except where the context otherwise requires.
4. Optional Redemption. The Securities may be redeemed at any time, at the option of the Company, in whole or from time to time in part, at a price equal to 100% of their principal amount plus accrued and unpaid interest, if any, to the Redemption Date (subject to the right of holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the Redemption Date) plus the Make-Whole Premium, if any (the "Redemption Price").
The amount of the "Make-Whole Premium" with respect to any Security (or portion thereof) to be redeemed will be equal to the excess, if any, of:
(i) the sum of the present values, calculated as of the Redemption Date, of:
(A) each interest payment that, but for such redemption would have been payable on the Security (or portion thereof) being redeemed on each Interest Payment Date occurring after the Redemption Date (excluding any accrued and unpaid interest for the period prior to the Redemption Date); and
(B) the principal amount that, but for such redemption, would have been payable at the final maturity of the Security (or portion thereof) being redeemed;
over
(ii) the principal amount of the Security (or portion thereof) being redeemed.
The present values of interest and principal payments referred to in clause (i) above will be determined in accordance with generally accepted principles of financial analysis. Such present values will be calculated by discounting the amount of each payment of interest or principal from the date that each such payment would have been payable, but for the redemption, to the Redemption Date at a discount rate equal to the Treasury Yield plus 30 basis points. The Make- Whole Premium will be calculated by an Independent Investment Banker.
For purposes of determining the Make-Whole Premium, "Treasury Yield" means a rate of interest per annum equal to the weekly average yield to maturity of United States Treasury Notes that have a constant maturity that corresponds to the remaining term to maturity of the Securities, calculated to the nearest 1/12 of a year (the "Remaining Term"). The Treasury Yield will be determined as of the third Business Day immediately preceding the applicable Redemption Date. The weekly average yields of United States Treasury Notes will be determined by reference to the most recent statistical release published by the Federal Reserve Bank of New York and designated "H.15(519) Selected Interest Rates" or any successor release (the "H.15 Statistical Release"). If the H.15 Statistical Release sets forth a weekly average yield for United States Treasury Notes having a constant maturity that is the same as the Remaining Term, then the Treasury Yield will be equal to such weekly average yield. In all other cases, the Treasury Yield will be calculated by interpolation, on a straight-line basis, between the weekly average yields on the United States Treasury Notes that have a constant maturity closest to and greater than the Remaining Term and the United States Treasury Notes that have a constant maturity closest to and less than the Remaining Term (in each case as set forth in the H.15 Statistical Release). Any weekly average yields so calculated by interpolation will be rounded to the nearest 1/100 of 1%, with any figure of 1/200% or above being rounded upward. If weekly average yields for United States Treasury Notes are not available in the H.15 Statistical Release or otherwise, then the Treasury Yield will be calculated by interpolation of comparable rates selected by the Independent Investment Banker.
"Independent Investment Banker" means Credit Suisse First Boston Corporation or, if such firm is unwilling or unable to make such calculation, an independent investment banking institution of national standing appointed by the Trustee.
Periodic interest installments with respect to which the Interest Payment Date is on or prior to any Redemption Date will be payable to Holders of record at the close of business on the relevant record dates referred to herein, all as provided in the Indenture.
Notice of redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder of Securities to be redeemed at his registered address. Securities in denominations larger than $1,000 may be redeemed in part but only in whole multiples of $1,000. On or after the Redemption Date interest will cease to accrue on Securities or on the portions thereof called for redemption, as the case may be.
5. Paying Agent and Registrar. Initially, The Bank of New York (the "Trustee"), the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent, Registrar, co-registrar or additional paying agent without notice to any Holder. The Company, the Guarantor, or any of their respective subsidiaries may act in any such capacity.
6. Indenture. The Company issued the Securities under an Indenture dated as of April 26, 2001 (as amended, supplemented or otherwise modified form time to time, the "Indenture") among the Company, the Guarantor
and the Trustee. The terms of the Securities include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb), as in effect on the date of execution of the Indenture. The Securities and the Guarantees are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. The Securities are unsecured general obligations of the Company and the Guarantees are unsecured general obligations of the Guarantor. Capitalized terms used but not defined in this Security have the respective meanings given to such terms in the Indenture.
7. Denominations, Transfer, Exchange. The Securities are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000. The transfer of Securities may be registered and Securities may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not exchange or register the transfer of any Securities during the period between a record date and the corresponding Interest Payment Date.
8. Persons Deemed Owners. The registered Holder of a Security shall be treated as its owner for all purposes.
9. Amendments and Waivers. Subject to certain exceptions and limitations, the Indenture or the Securities may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the then outstanding Securities, and compliance in a particular instance by the Company or the Guarantor with any provision of the Indenture may be waived (other than certain provisions, including any continuing Default or Event of Default in the payment of the principal of, or premium, if any, or interest on the Securities) by the Holders of at least a majority in principal amount of the Securities then outstanding in accordance with the terms of the Indenture. Without the consent of any Holder, the Company, the Guarantor and the Trustee may amend or supplement the Indenture or the Securities to cure any ambiguity, omission, defect or inconsistency; to comply with the Indenture in the case of the merger, consolidation or sale or other disposition of all or substantially all of the assets of the Company or the Guarantor; to provide for uncertificated Securities in addition to or in place of certificated Securities; to add to, change or eliminate the provisions of the Indenture to the extent necessary to facilitate the issuance of Securities in accordance with the Indenture; to change or eliminate any provision of the Indenture when there is no Security outstanding which is entitled to the benefit of such provision; to secure the Securities of any series pursuant to the requirements under the Indenture; to comply with any requirements in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act of 1939, as amended; to comply with any requirements of the SEC in connection with qualifying the Indenture under the TIA; to add to the covenants of the Company or the Guarantor for the benefit of the Holders or to surrender any power conferred upon the Company or the Guarantor; or to make any change that does not adversely affect the rights of any Holder.
The right of any Holder to participate in any consent required or sought pursuant to any provision of the Indenture (and the obligation of the Company to obtain any such consent otherwise required from such Holder) may be subject to the requirement that such Holder shall have been the Holder of record of any Securities with respect to which such consent is required or sought as of a date identified by the Trustee in a notice furnished to Holders in accordance with the terms of the Indenture.
Without the consent of Holders of at least two-thirds in principal amount of the Securities of any series then outstanding, an amendment, supplement or waiver under this Section may not (a) reduce the rate of or change the time for payment of Liquidated Damages, if any, on any Security of such series, (b) impair the right to institute suit for the enforcement of any payment of Liquidated Damages, if any, on any Security of such series, except as limited by Section 5.06 of the Indenture, or (c) waive a continuing Default or Event of Default in the payment of Liquidated Damages, if any, on the Securities of such series.
Without the consent of each Holder affected, the Company may not (i)
reduce the percentage of principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver, (ii) reduce the rate of or change
the time for payment of interest, including default interest, on any Security,
(iii) reduce the principal of or change the fixed maturity of any Security or
alter the premium or other provisions with respect to redemption, (iv) make any
Security payable in money other than that stated in the Security, (v) impair the
right to institute suit for the enforcement of any payment of principal of, or
premium, if any, or interest on any Security, (vi) make any change in the
percentage
of principal amount of Securities necessary to waive compliance with certain provisions of the Indenture or (vii) waive a continuing Default or Event of Default in the payment of principal of, or premium, if any, or interest on the Securities.
10. Defaults and Remedies. Events of Default include: default in payment of interest or Liquidated Damages, if any, on the Securities for 60 days; default in payment of principal of, or premium, if any, on the Securities; default in the performance, or breach, of any of its other covenants, warranties or agreements in the Indenture by the Company or the Guarantor for 90 days after written notice by the Trustee or by the Holders of at least 25% of the aggregate principal amount of the Securities then outstanding; a default in the payment of principal or interest in respect of any Funded Debt of the Company or the Guarantor outstanding in an aggregate principal amount in excess of $25 million, and such default shall be continuing for a period of 30 days without the Company or Guarantor effecting a cure of such default, resulting in the acceleration of Maturity of the Funded Debt; certain voluntary or involuntary events involving bankruptcy, insolvency or reorganization of the Company or the Guarantor; and the Guarantee in respect of the Securities ceases to be in full force and effect or becomes unenforceable or invalid or is declared null and void, or the Guarantor denies or disaffirms its obligations under such Guarantee. If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Securities may declare the principal of, and premium, if any, and interest on all the Securities to be immediately due and payable, except that in the case of an Event of Default arising from certain events of bankruptcy, insolvency or reorganization of the Company or the Guarantor, all outstanding Securities become due and payable immediately without further action or notice. The amount due and payable upon the acceleration of any Security is equal to 100% of the principal amount thereof plus premium, if any, and accrued interest to the date of payment. Holders may not enforce the Indenture or the Securities except as provided in the Indenture. The Trustee may require indemnity reasonably satisfactory to it before it enforces the Indenture or the Securities. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Securities may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing default (except a default in payment of principal or premium, if any, or interest) if it determines that withholding notice is in their interests. The Company must furnish an annual compliance certificate to the Trustee.
11. Discharge Prior to Maturity. The Indenture shall be discharged and canceled upon the payment of all of the Securities and shall be discharged except for certain obligations upon the irrevocable deposit with the Trustee of funds or U.S. Government Obligations sufficient for such payment.
12. Trustee Dealings with the Company and the Guarantor. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company, the Guarantor or their respective Affiliates, and may otherwise deal with the Company, the Guarantor or their respective Affiliates, as if it were not Trustee.
13. No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company or the Guarantor shall not have any liability for any obligations of the Company or the Guarantor under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Holder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Securities.
14. Authentication. This Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
15. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Securities as a convenience to the Holders of the Securities. No representation is made as to the accuracy of such numbers as printed on the Securities and reliance may be placed only on the other identification numbers printed thereon.
16. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
17. Governing Law. The Indenture and the Securities shall be governed by and constructed in accordance with, the laws of the State of New York.
18. [Additional Rights and Obligations of Holders of Transfer Restricted Securities. In addition to the rights provided to Holders of Securities under the Indenture, Holders of Transfer Restricted Securities shall have all the rights set forth in the Registration Rights Agreement, dated as of the Issue Date (the "Registration Rights Agreement"), among the Company, the Guarantor and the Initial Purchaser. Each Holder of a Transfer Restricted Security , by his acceptance thereof, acknowledges and agrees to the provisions of the Registration Rights Agreement, including without limitation the obligations of the Holders with respect to a registration and the indemnification of the Company and the Guarantors to the extent provided therein.]*
The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Request may be made to:
Anadarko Finance Company
17001 Northchase Drive
Houston, TX 77060
Attention: Vice President and Treasurer
Telecopier No. (281) 863-7077
* This paragraph should be included only if the Security is a Transfer Restricted Security.
FORM OF NOTATION ON SECURITY
RELATING TO GUARANTEE
The Guarantor (which term includes any successor Person in such capacity under the Indenture), has fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture, the due and punctual payment of the principal of, and premium, if any, and interest on the Securities and all other amounts due and payable under the Indenture and the Securities by the Company.
The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to the Guarantees and the Indenture are expressly set forth in Article IX of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee.
Guarantor:
ANADARKO PETROLEUM CORPORATION
ASSIGNMENT FORM
and irrevocably appoint __________________________________________________ as agent to transfer this Security on the books of the Company. The agent may substitute another to act for him.
In connection with any transfer of any of the Securities evidenced by this certificate occurring prior to the expiration of the period referred to in Rule 144(k) under the Securities Act after the later of the date of original issuance of such Securities and the last date, if any, on which such Securities were owned by the Company or any Affiliate of the Company, the undersigned confirms that such Securities are being transferred as specified below:
CHECK ONE
(1) [ ] to the Guarantor, the Company or a Subsidiary thereof; or
(2) [ ] to a "qualified institutional buyer" (as defined in Rule 144A
under the Securities Act of 1933) that purchases for its own
account or for the account of a qualified institutional buyer
to whom notice is given that such transfer is being made in
reliance on Rule 144A, in each case pursuant to and in
compliance with Rule 144A under the Securities Act of 1933; or
(3) [ ] outside the United States to a "foreign person" in compliance
with Rule 904 of Regulation S under the Securities Act of
1933; or
(4) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(5) [ ] pursuant to an exemption from the registration requirements of
the Securities Act of 1933, provided by Rule 144 thereunder.
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and unless the box below is checked, the undersigned confirms that such Security is not being transferred to an "affiliate" of the Company as defined in Rule 144 under the Securities Act of 1933 (an "Affiliate"):
[ ] The transferee is an Affiliate of the Company.
Unless one of items (1) through (5) above is checked, the Trustee will refuse to register any of the Securities evidenced by this certificate in the name of any person other than the registered Holder thereof; provided, however, that if item (3), or (5) is checked, the Company or the Trustee may require, prior to registering any such transfer of the Securities, in their sole discretion, such written legal opinions, certifications (including an investment letter) and other information as the Trustee or the Company have reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.
If none of the foregoing items are checked, the Trustee or Registrar shall not be obligated to register this Security in the name of any person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 2.06 of the Indenture shall have been satisfied.
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Security for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act of 1933 and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned's foregoing representations in order to claim the exemption from registration provided by Rule 144A.
* These paragraphs should be included only if the Security is a Transfer Restricted Security.
SCHEDULE OF EXCHANGES OF SECURITIES*
The following exchanges, redemptions or repurchases of a part of this Global Security have been made:
PRINCIPAL AMOUNT SIGNATURE OF
AMOUNT OF AMOUNT OF OF GLOBAL SECURITY AUTHORIZED
DECREASE IN INCREASE IN FOLLOWING SUCH OFFICER, TRUSTEE OR
DATE OF PRINCIPAL AMOUNT PRINCIPAL AMOUNT DECREASE (OR SECURITIES
TRANSACTION OF GLOBAL SECURITY OF GLOBAL SECURITY INCREASE) CUSTODIAN
----------------- ------------------ ------------------ ------------------ -------------------
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* This Schedule should be included only if the Security is a Global Security.
EXHIBIT 4(b)
ANADARKO FINANCE COMPANY
, AS COMPANY
ANADARKO PETROLEUM CORPORATION
, AS GUARANTOR
AND
THE BANK OF NEW YORK
, AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF MAY 23, 2001 TO
INDENTURE
DATED AS OF APRIL 26, 2001
$550,000,000
ADDITIONAL 6 3/4% SERIES A AND SERIES B SENIOR NOTES DUE 2011
FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE, dated as of May 23, 2001 (this "First Supplemental Indenture"), to the Indenture, dated as of April 26, 2001 (the "Indenture"), is by and among Anadarko Finance Company, an unlimited liability company organized under the laws of the province of Nova Scotia, Canada (the "Company"), Anadarko Petroleum Corporation, a Delaware corporation (the "Guarantor"), and The Bank of New York, as trustee (the "Trustee").
RECITALS OF THE COMPANY:
WHEREAS, pursuant to the Indenture the Company established and provided for the issuance by the Company of four series of Securities, of which (i) two series are designated as the 6 3/4% Series A Senior Notes due 2011 (the "10-Year Series A Securities") and the 6 3/4% Series B Senior Notes due 2011 (the "10-Year Series B Securities" and, collectively with the 10-Year Series A Securities, the "10-Year Securities") and (ii) each such series is in the aggregate principal amount of $400,000,000 and unconditionally guaranteed by the Guarantor;
WHEREAS, Section 2.02 of the Indenture expressly provides that any additional amount of Securities may be issued and authenticated upon a written order of the Company specifying (a) the amount of Securities of each series to be authenticated and the date of original issue thereof, and (b) whether the Securities are Series A Securities or Series B Securities;
WHEREAS, the Company desires to reopen the 10-Year Securities and issue $550,000,000 principal amount of additional 10-Year Series A Securities and, pursuant to an Exchange Offer or Private Exchange, $550,000,000 principal amount of 10-Year Series B Securities, which will be part of the same series as the 10-Year Series A Securities and 10-Year Series B Securities, respectively, issued on the Issue Date, and will rank equally with such 10-Year Series A Securities and 10-Year Series B Securities, respectively, in all respects;
WHEREAS, the Guarantor has agreed to unconditionally guarantee the additional 10-Year Securities in accordance with Article IX of the Indenture;
WHEREAS, the conditions set forth in the Indenture for the execution and delivery of this First Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this First Supplemental Indenture a valid and binding agreement of the Company, the Guarantor and the Trustee, in accordance with its terms, and a valid and binding amendment of, and supplement to, the Indenture have been done;
NOW THEREFORE:
Pursuant to Section 2.02 of the Indenture, the 10-Year Securities established by the Indenture is hereby reopened and there is hereby authorized for issuance, authentication and delivery $550,000,000 principal amount of 10-Year Series A Securities (the "Additional 10-Year Series A Securities") and, for original issue pursuant to an Exchange Offer or Private Exchange for a like principal amount of the 10-Year Series A Securities, $550,000,000 principal amount of 10-Year Series B Securities (the "Additional 10-Year Series B Securities" and, collectively with the Additional 10-Year Series A Securities, the "Additional 10-Year Securities"), such Additional 10-Year Series A Securities and Additional 10-Year Series B Securities to be of the same series as the 10-Year Series A Securities and 10-Year Series B Securities, respectively, and
in consideration of the premises and the purchase and acceptance of the Additional 10-Year Securities by the Holders thereof, the Company and the Guarantor mutually covenant and agree with the Trustee, for the equal and proportionate benefit of all Holders of the 10-Year Securities and the Additional 10-Year Securities, that the Indenture is hereby supplemented and amended, to the extent and for the purposes expressed herein, as follows:
ARTICLE ONE
AMENDMENTS TO THE INDENTURE
Section 1.1 Amendments to Indenture. The Indenture is hereby amended and supplemented as follows:
(a) The 10-Year Series A Securities established by the Indenture is hereby reopened for the issuance of Additional 10-Year Series A Securities in an aggregate principal amount of $550,000,000 which shall rank equally with the 10-Year Series A Securities in all respects, shall form a single series of $950,000,000 aggregate principal amount with the 10-Year Series A Securities, with the same CUSIP number, and shall have the same terms as the 10-Year Series A Securities, except that the date of original issuance of the Additional 10-Year Series A Securities will be May 23, 2001. The 10-Year Series B Securities established by the Indenture which are to be issued pursuant to an Exchange Offer or Private Exchange for a like principal amount of 10-Year Series A Securities is hereby reopened for the original issue, pursuant to an Exchange Offer or Private Exchange, of $550,000,000 Additional 10-Year Series B Securities for a like principal amount of 10-Year Series A Securities, which Additional 10-Year Series B Securities shall rank equally with the 10-Year Series B Securities in all respects, shall form a single series of $950,000,000 aggregate principal amount of the 10-Year Series B Securities, with the same CUSIP number, and shall have the same terms as the 10-Year Series B Securities. Interest on the Additional 10-Year Securities shall accrue from April 26, 2001. The form of Additional 10-Year Securities to be issued shall be identical to the form of 10-Year Securities included as Exhibit A to the Indenture, except that the date of original issuance of the Additional 10-Year Series A Securities will be May 23, 2001 and references therein to the Registration Rights Agreement dated as of April 26, 2001 shall instead refer to the Registration Rights Agreement dated as of May 23, 2001.
(b) All references in the Indenture and the form of 10-Year Securities attached thereto as Exhibit A to the 10-Year Securities established by the Indenture and in the outstanding 10-Year Securities shall be amended, supplemented and deemed to include the Additional 10-Year Securities issued or authorized for issuance hereunder.
(c) The Additional 10-Year Securities shall be subject to the Indenture, as amended hereby.
(d) The following shall be added as Section 2.07(f) of the Indenture:
(f) In the event of a transfer, substitution or replacement of a Global Security or certificated Security in either case that is a Transfer Restricted Security, which transfer, substitution or replacement occurs prior to completion of the Exchange Offer, the Transfer Restricted Security issued upon such transfer, substitution or replacement shall contain in paragraph 18 thereof the reference to the same Registration Rights Agreement referenced in the Transfer Restricted
Security in exchange, substitution or replacement for which such new Transfer Restricted Security is being issued.
ARTICLE TWO
MISCELLANEOUS
Section 2.1 Execution as Supplemental Indenture; Definitions. This First Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Indenture and, as provided in the Indenture, this First Supplemental Indenture forms a part thereof. Unless otherwise provided in this First Supplemental Indenture, all defined terms used in this First Supplemental Indenture shall have the respective meanings assigned to them in the Indenture.
Section 2.2 Conflict of any Provision of Indenture with Trust Indenture Act of 1939. If and to the extent that any provision of this First Supplemental Indenture limits, qualifies or conflicts with another provision included in this First Supplemental Indenture or in the Indenture which is required to be included herein or therein by any of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, as amended, such required provision shall control.
Section 2.3 New York Law to Govern. This First Supplemental Indenture and the Securities (including the Additional 10-Year Securities) shall be governed by and construed in accordance with the laws of the State of New York.
Section 2.4 Counterparts. This First Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
Section 2.5 Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
Section 2.6 Severability of Provisions. In case any provision in this First Supplemental Indenture or in the Securities (including the Additional 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.
Section 2.7 Successors and Assigns. All covenants and agreements in this First Supplemental Indenture by the parties hereto shall bind their respective successors and assigns and inure to the benefit of their respective successors and assigns, regardless of whether so expressed.
Section 2.8 Benefit of First Supplemental Indenture. Nothing in this First Supplemental Indenture, express or implied, shall give to any Person, other than the parties hereto, any Registrar, any Paying Agent and their successors hereunder, and the Holders of the Securities, any benefit or any legal or equitable right, remedy or claim under this First Supplemental Indenture.
Section 2.9 Acceptance by Trustee. The Trustee accepts the amendments to the Indenture effected by this First Supplemental Indenture and agrees to execute the trusts created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture. Without limiting the generality of the foregoing, the Trustee assumes no responsibility for the correctness of the recitals contained herein, which shall be taken as the
statements of the Company and, except as provided in the Indenture, the Trustee shall not be responsible or accountable in any way whatsoever for or with respect to the validity or execution or sufficiency of this First Supplemental Indenture and the Trustee makes no representation with respect thereto.
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed, all as of the date first above written.
Company:
ANADARKO FINANCE COMPANY
By: /s/ ALBERT L. RICHEY
------------------------------------
Name: A. L. Richey
Title: Vice President and Treasurer
|
Guarantor:
ANADARKO PETROLEUM CORPORATION
By: /s/ ALBERT L. RICHEY
------------------------------------
Name: A. L. Richey
Title: Vice President and Treasurer
|
Trustee:
THE BANK OF NEW YORK
By: /s/ BEATA HRYNIEWICKA
------------------------------------
Name: Beata Hryniewicka
Title: Assistant Treasurer
|
EXHIBIT 4(c)
$1,300,000,000
ANADARKO FINANCE COMPANY
$400,000,000 6 3/4% SENIOR NOTES DUE 2011
$900,000,000 7 1/2% SENIOR NOTES DUE 2031
ALL OBLIGATIONS FULLY AND UNCONDITIONALLY GUARANTEED
BY
ANADARKO PETROLEUM CORPORATION
REGISTRATION RIGHTS AGREEMENT
April 26, 2001
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010-3629
Dear Sirs:
Anadarko Finance Company, an unlimited liability company organized under the laws of the province of Nova Scotia, Canada (the "ISSUER"), proposes to issue and sell to Credit Suisse First Boston Corporation (the "INITIAL PURCHASER"), upon the terms set forth in a purchase agreement dated April 19, 2001 (the "PURCHASE AGREEMENT"), $1,300,000,000 aggregate principal amount of its senior notes, of which $400,000,000 aggregate principal amount will be 6 3/4% Senior Notes due 2011 and $900,000,000 aggregate principal amount will be 7 1/2% Senior Notes due 2031 (collectively, the "INITIAL SECURITIES"). The Initial Securities will be fully and unconditionally guaranteed pursuant to guarantees (the "GUARANTEES") by Anadarko Petroleum Corporation, a Delaware corporation (the "GUARANTOR" and, collectively with the Issuer, the "COMPANY"). The Initial Securities will be issued pursuant to an Indenture, dated as of April 26, 2001 (the "INDENTURE"), among the Issuer, the Guarantor and The Bank of New York, as trustee (the "TRUSTEE"). As an inducement to the Initial Purchaser to enter into the Purchase Agreement, the Company agrees with the Initial Purchaser, for the benefit of the Initial Purchaser and the holders of the Securities (as defined below) (collectively, the "HOLDERS"), as follows:
1. Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 120 days (such 120th day being a "FILING DEADLINE") after the date on which the Initial Purchaser purchases the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Issuer, guaranteed pursuant to guarantees by the Guarantor, in each case, issued under the Indenture in a transaction registered under the Securities Act and identical in all material respects to the Initial Securities and the Guarantees, respectively (the "EXCHANGE SECURITIES"). The Company shall use its best efforts to (i) cause such Exchange Offer Registration Statement to become effective under the Securities Act at the earliest possible time, but in no event later than 180 days after the Closing Date (such 180th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER REGISTRATION PERIOD").
Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer. The Company (i) will be entitled to consummate the Registered Exchange Offer 20 business days after the commencement thereof (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 30 days after the date on which the Exchange Offer Registration Statement is declared effective (such 30th day being the "CONSUMMATION DEADLINE").
It is the objective of the Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange the Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Holder's business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States.
The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) the Initial Purchaser if it elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale.
The Company shall use its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided, however, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or the Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchaser have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, the Initial Purchaser holds Initial Securities acquired by it as part of its initial purchase from the Issuer, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to the Initial Purchaser upon the written request of the Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by the Initial Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Exchange Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES".
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities either Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities of each series bearing the same interest rate and maturity will vote and consent together on all matters as one class and that none of the Securities of each series bearing the same interest rate and maturity will have the right to vote or consent as a class separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date of original issue of the Initial Securities.
Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities.
Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will take all such other action as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution by the Commission staff.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
is not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Registered Exchange Offer is not consummated by the
210th day after the Closing Date, (iii) the Initial Purchaser so requests with
respect to the Private Exchange Securities (or the Initial Securities under the
conditions described in clause (i) or (ii)) or (iv) any Holder (other than an
Exchanging Dealer) is not eligible to participate in the Registered Exchange
Offer or, in the case of any Holder (other than an Exchanging Dealer) that
participates in the Registered Exchange Offer, such Holder does not receive
freely tradeable Exchange Securities on the date of the exchange and any such
Holder so requests prior to the 20th business day following the consummation of
the Registered Exchange Offer, the Company shall take the following action (the
date on which any of the conditions described in the foregoing clauses (i)
through (iv) occur, including in the case of clauses (iii) or (iv) the receipt
of the required notice, being a "TRIGGER DATE"):
(a) The Company shall promptly (but in no event more than 45 days after the Trigger Date (such 45th day being a "FILING DEADLINE")) file with the Commission and thereafter use its best efforts to cause to be declared effective no later than 60 days after the Trigger Date (such 60th day being an "EFFECTIVENESS DEADLINE") a registration statement (the "SHELF REGISTRATION STATEMENT" and, together with the Exchange Offer Registration Statement, the "REGISTRATION STATEMENT") on an appropriate form under the Securities Act relating to the offer and sale of the Transfer Restricted Securities by the Holders thereof from time to time in accordance with the methods of distribution set forth in the Shelf Registration Statement and Rule 415 under the Securities Act (hereinafter, the "SHELF REGISTRATION"); provided, however, that no Holder (other than the Initial Purchaser) shall be entitled to have the Securities held by it covered by such Shelf Registration Statement unless such Holder agrees in writing to be bound by all the provisions of this Agreement applicable to such Holder.
(b) The Company shall use its best efforts to keep the Shelf Registration Statement continuously effective in order to permit the prospectus included therein to be lawfully delivered by the Holders of the relevant Securities, for a period of two years (or for such longer period if extended pursuant to Section 3(j) below) from the date of its effectiveness or such shorter period that will terminate when all the Securities covered by the Shelf Registration Statement (i) have been sold pursuant thereto or (ii) are no longer
restricted securities (as defined in Rule 144 under the Securities Act, or any successor rule thereunder). The Company shall be deemed not to have used its best efforts to keep the Shelf Registration Statement effective during the requisite period if it voluntarily takes any action that would result in Holders of Securities covered thereby not being able to offer and sell such Securities during that period, unless such action is required by applicable law.
(c) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall cause the Shelf Registration Statement and the related prospectus and any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement, amendment or supplement, (i) to comply in all material respects with the applicable requirements of the Securities Act and the rules and regulations of the Commission and (ii) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
3. Registration Procedures. In connection with any Shelf Registration contemplated by Section 2 hereof and, to the extent applicable, any Registered Exchange Offer contemplated by Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to the Initial Purchaser, prior to the filing thereof with the Commission, a copy of the Registration Statement and each amendment thereof and each supplement, if any, to the prospectus included therein and, in the event that the Initial Purchaser (with respect to any portion of an unsold allotment from the original offering) is participating in the Registered Exchange Offer or the Shelf Registration Statement, the Company shall use its best efforts to reflect in each such document, when so filed with the Commission, such comments as the Initial Purchaser reasonably may propose; (ii) include the information set forth in Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section and in Annex C hereto in the "Plan of Distribution" section of the prospectus forming a part of the Exchange Offer Registration Statement and include the information set forth in Annex D hereto in the Letter of Transmittal delivered pursuant to the Registered Exchange Offer; (iii) if requested by the Initial Purchaser, include the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in the prospectus forming a part of the Exchange Offer Registration Statement; (iv) include within the prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchaser, which shall contain a summary statement of the positions taken or policies made by the staff of the Commission with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of Exchange Securities received by such broker-dealer in the Registered Exchange Offer (a "PARTICIPATING BROKER-DEALER"), whether such positions or policies have been publicly disseminated by the staff of the Commission or such positions or policies, in the reasonable judgment of the Initial Purchaser based upon advice of counsel (which may be in-house counsel), represent the prevailing views of the staff of the Commission; and (v) in the case of a Shelf Registration Statement, include the names of the Holders who
propose to sell Securities pursuant to the Shelf Registration Statement as selling securityholders.
(b) The Company shall give written notice to the Initial Purchaser, the Holders of the Securities and any Participating Broker-Dealer from whom the Company has received prior written notice that it will be a Participating Broker-Dealer in the Registered Exchange Offer (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the use of the prospectus until the requisite changes have been made):
(i) when the Registration Statement or any amendment thereto has been filed with the Commission and when the Registration Statement or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to the Registration Statement or the prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make changes in the Registration Statement or the prospectus in order that the Registration Statement or the prospectus do not contain an untrue statement of a material fact nor omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading.
(c) The Company shall make every reasonable effort to obtain the withdrawal at the earliest possible time of any order suspending the effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Securities included within the coverage of the Shelf Registration, without charge, at least one copy of the Shelf Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if the Holder so requests in writing, all exhibits thereto (including those, if any, incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer and the Initial Purchaser, and to any other Holder who so requests, without charge, at least one copy of the Exchange Offer Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Initial Purchaser or any such Holder requests, all exhibits thereto (including those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver to each Holder of Securities included within the coverage of the Shelf Registration, without charge, as many copies of the prospectus (including each preliminary prospectus) included in the Shelf Registration Statement and any amendment or supplement thereto as such person may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto by each of the selling Holders of the Securities in connection with the offering and sale of the Securities covered by the prospectus, or any amendment or supplement thereto, included in the Shelf Registration Statement.
(g) The Company shall deliver to the Initial Purchaser, any Exchanging Dealer, any Participating Broker-Dealer and such other persons required to deliver a prospectus following the Registered Exchange Offer, without charge, as many copies of the final prospectus included in the Exchange Offer Registration Statement and any amendment or supplement thereto as such persons may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto by the Initial Purchaser, if necessary, any Participating Broker-Dealer and such other persons required to deliver a prospectus following the Registered Exchange Offer in connection with the offering and sale of the Exchange Securities covered by the prospectus, or any amendment or supplement thereto, included in the Exchange Offer Registration Statement.
(h) Prior to any public offering of the Securities pursuant to any Registration Statement the Company shall register or qualify or cooperate with the Holders of the Securities included therein and their respective counsel in connection with the registration or qualification of the Securities for offer and sale under the securities or "blue sky" laws of such states of the United States as any Holder of the Securities reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Registration Statement; provided, however, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action which would subject it to general service of process or to taxation in any jurisdiction where it is not then so subject.
(i) The Company shall cooperate with the Holders of the Securities to facilitate the timely preparation and delivery of certificates representing the Securities to be sold pursuant to any Registration Statement free of any restrictive legends and in such denominations and registered in such names as the Holders may request a reasonable period of time prior to sales of the Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs (ii) through (v) of Section 3(b) above during the period for which the Company is required to maintain an effective Registration Statement, the Company shall promptly prepare and file a post-effective amendment to the Registration Statement or a supplement to the
related prospectus and any other required document so that, as
thereafter delivered to Holders of the Securities or purchasers of
Securities, the prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. If the
Company notifies the Initial Purchaser, the Holders of the Securities
and any known Participating Broker-Dealer in accordance with paragraphs
(ii) through (v) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been
made, then the Initial Purchaser, the Holders of the Securities and any
such Participating Broker-Dealers shall suspend use of such prospectus,
and the period of effectiveness of the Shelf Registration Statement
provided for in Section 2(b) above and the Exchange Offer Registration
Statement provided for in Section 1 above shall each be extended by the
number of days from and including the date of the giving of such notice
to and including the date when the Initial Purchaser, the Holders of
the Securities and any known Participating Broker-Dealer shall have
received such amended or supplemented prospectus pursuant to this
Section 3(j).
(k) Not later than the effective date of the applicable Registration Statement, the Company will provide a CUSIP number for the Initial Securities, the Exchange Securities or the Private Exchange Securities, as the case may be. The Company will also provide the applicable trustee with printed certificates for the Initial Securities, the Exchange Securities or the Private Exchange Securities, as the case may be, in a form eligible for deposit with The Depository Trust Company, at or prior to the time of issuance of such Securities.
(l) The Company will comply with all rules and regulations of the Commission to the extent and so long as they are applicable to the Registered Exchange Offer or the Shelf Registration and will make generally available to its security holders (or otherwise provide in accordance with Section 11(a) of the Securities Act) an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and meeting the requirements of Rule 158 under the Securities Act.
(m) The Company shall cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended, in a timely manner and containing such changes, if any, as shall be necessary for such qualification. In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.
(n) The Company may require each Holder of Securities to be sold pursuant to the Shelf Registration Statement to furnish to the Company such information regarding the Holder and the distribution of the Securities as the Company may from time to time reasonably require for inclusion in the Shelf Registration Statement, and the Company may exclude from such registration the Securities of any Holder that unreasonably fails to furnish such information within a reasonable time after receiving such request.
(o) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form)
and take all such other action,
if any, as any Holder of the Securities may reasonably request in order to facilitate the disposition of the Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Company shall
(i) make reasonably available for inspection by the Holders of the
Securities, any underwriter participating in any disposition pursuant
to the Shelf Registration Statement and any attorney, accountant or
other agent retained by the Holders of the Securities or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and (ii) cause the
Company's officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by the Holders of
the Securities or any such underwriter, attorney, accountant or agent
in connection with the Shelf Registration Statement, in each case, as
shall be reasonably necessary to enable such persons to conduct a
reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Initial
Purchaser by you and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in
Section 4 hereof; provided further, however, that any information that
is designated in writing by the Company, in good faith, as confidential
at the time of delivery of such information shall be kept confidential
by the Holders or any such underwriter, attorney, accountant or other
agent, unless such disclosure is made in connection with a court
proceeding or required by law, or such information is or becomes
available to the public generally or through a third party without, to
the knowledge of any recipient of confidential information, an
accompanying obligation of confidentiality or is independently
developed.
(q) In the case of any Shelf Registration, the Company, if requested by any Holder of Securities covered thereby, shall cause (i) its counsel (including both staff counsel and outside counsel, with the overall coverage of such opinions allocated between them in a customary manner) to deliver opinions and updates thereof relating to the Securities in customary form addressed to such Holders and the managing underwriters, if any, thereof and dated, in the case of the initial opinions, the effective date of such Shelf Registration Statement (it being agreed that the matters to be covered by such opinions shall include, without limitation, the due incorporation and good standing of the Company and its significant subsidiaries; the qualification of the Company and its subsidiaries to transact business as foreign corporations; the due authorization, execution and delivery of the relevant agreement of the type referred to in Section 3(o) hereof; the due authorization, execution, authentication and issuance, and the validity and enforceability, of the applicable Securities; the absence of material legal or governmental proceedings involving the Company and its subsidiaries; the absence of governmental approvals required to be obtained in connection with the Shelf Registration Statement, the offering and sale of the applicable Securities, or any agreement of the type referred to in Section 3(o) hereof; the compliance as to form of such Shelf Registration Statement and any documents incorporated by reference therein and of the Indenture with the requirements of the Securities Act and the Trust Indenture Act, respectively; and, as of the date of the opinion and as of the effective date of the Shelf Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from such Shelf Registration Statement and the prospectus included therein, as then amended
or supplemented, and from any documents incorporated by reference therein of an untrue statement of a material fact or the omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any such documents, in the light of the circumstances existing at the time that such documents were filed with the Commission under the Exchange Act); (ii) its officers to execute and deliver all customary documents and certificates and updates thereof requested by any underwriters of the applicable Securities and (iii) its independent public accountants and the independent public accountants with respect to any other entity for which financial information is provided in the Shelf Registration Statement to provide to the selling Holders of the applicable Securities and any underwriter therefor a comfort letter in customary form and covering matters of the type customarily covered in comfort letters in connection with underwritten offerings, subject to receipt of appropriate documentation as contemplated, and only if permitted, by Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if requested by the Initial Purchaser or any known Participating Broker-Dealer, the Company shall cause (i) its counsel to deliver to the Initial Purchaser or such Participating Broker-Dealer signed opinions in the forms set forth in Section 6(c)(i)-(iii) of the Purchase Agreement with such changes as are customary in connection with the preparation of a Registration Statement and (ii) its independent public accountants and the independent public accountants with respect to any other entity for which financial information is provided in the Registration Statement to deliver to the Initial Purchaser or such Participating Broker-Dealer a comfort letter, in customary form, meeting the requirements as to the substance thereof as set forth in Section 6(a) of the Purchase Agreement, with appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to be consummated, upon delivery of the Initial Securities by Holders to the Company (or to such other Person as directed by the Company) in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be, the Company shall mark, or caused to be marked, on the Initial Securities so exchanged that such Initial Securities are being canceled in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be; in no event shall the Initial Securities be marked as paid or otherwise satisfied.
(t) The Company will use its best efforts to (a) if the Initial Securities have been rated prior to the initial sale of such Initial Securities, confirm such ratings will apply to the Securities covered by a Registration Statement, or (b) if the Initial Securities were not previously rated, cause the Securities covered by a Registration Statement to be rated with the appropriate rating agencies, if so requested by Holders of a majority in aggregate principal amount of Securities covered by such Registration Statement, or by the managing underwriters, if any.
(u) In the event that any broker-dealer registered under the Exchange Act shall underwrite any Securities or participate as a member of an underwriting syndicate or selling group or "assist in the distribution" (within the meaning of the Conduct Rules
(the "RULES") of the National Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of such Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company will assist such broker-dealer in complying with the requirements of such Rules, including, without limitation, by (i) if such Rules, including Rule 2720, shall so require, engaging a "qualified independent underwriter" (as defined in Rule 2720) to participate in the preparation of the Registration Statement relating to such Securities, to exercise usual standards of due diligence in respect thereto and, if any portion of the offering contemplated by such Registration Statement is an underwritten offering or is made through a placement or sales agent, to recommend the yield of such Securities, (ii) indemnifying any such qualified independent underwriter to the extent of the indemnification of underwriters provided in Section 5 hereof and (iii) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the Rules.
(v) The Company shall use its best efforts to take all other steps necessary to effect the registration of the Securities covered by a Registration Statement contemplated hereby.
4. Registration Expenses. (a) All expenses incident to the Company's performance of and compliance with this Agreement will be borne by the Company, regardless of whether a Registration Statement is ever filed or becomes effective, including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing certificates for the Securities to be issued in the Registered Exchange Offer and the Private Exchange and printing of Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company;
(v) all application and filing fees in connection with listing the Exchange Securities on a national securities exchange or automated quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified public accountants of the Company (including the expenses of any special audit and comfort letters required by or incident to such performance).
The Company will bear its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expenses of any annual audit and the fees and expenses of any person, including special experts, retained by the Company.
(b) In connection with any Registration Statement required by this Agreement, the Company will reimburse the Initial Purchaser and the Holders of Transfer Restricted Securities who are tendering Initial Securities in the Registered Exchange Offer and/or selling or reselling Securities pursuant to the "Plan of Distribution" contained in the Exchange Offer Registration Statement or the Shelf Registration Statement, as applicable, for the reasonable fees and disbursements of not more than one counsel, who shall be Hughes Hubbard & Reed LLP unless another firm shall be chosen by the Holders of a majority in principal amount of the Transfer Restricted Securities for whose benefit such Registration Statement is being prepared.
5. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Holder of the Securities, any Participating Broker-Dealer and each
person, if any, who controls such Holder or such Participating Broker-Dealer
within the meaning of the Securities Act or the Exchange Act (each Holder, any
Participating Broker-Dealer and such controlling persons are referred to
collectively as the "INDEMNIFIED PARTIES") from and against any losses, claims,
damages or liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages, liabilities or
actions relating to purchases and sales of the Securities) to which each
Indemnified Party may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus relating to a
Shelf Registration, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse, as
incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
(i) the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein and (ii) with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus relating
to a Shelf Registration Statement, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Holder or Participating
Broker-Dealer from whom the person asserting any such losses, claims, damages or
liabilities purchased the Securities concerned, to the extent that a prospectus
relating to such Securities was required to be delivered by such Holder or
Participating Broker-Dealer under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability of such Holder or
Participating Broker-Dealer results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Securities to such person, a copy of the final prospectus if the Company
had previously furnished copies thereof to such Holder or Participating
Broker-Dealer; provided further, however, that this indemnity agreement will be
in addition to any liability which the Company may otherwise have to such
Indemnified Party. The Company shall also indemnify underwriters, their officers
and directors and each person who controls such underwriters within the meaning
of the Securities Act or the Exchange Act to the same extent as provided above
with respect to the indemnification of the Holders of the Securities if
requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will indemnify and hold harmless the Company and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act from and against any losses, claims, damages or liabilities or any actions in respect thereof, to which the Company or any such controlling person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus relating to a Shelf Registration, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with written information pertaining to such Holder and furnished to the Company by or on behalf of such Holder specifically for inclusion therein; and, subject to the limitation set forth immediately preceding this clause, shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, claim, damage, liability or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 5(a) or 5(b), such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (a) the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by a majority of the Holders, in the case of parties indemnified pursuant to Section 5(a), and by the Guarantor, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action, and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the exchange of the Securities,
pursuant to the Registered Exchange Offer, or (ii) if the allocation provided by
the foregoing clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
such Holder or such other indemnified party, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 5(d), the Holders of the Securities shall not be required to contribute
any amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Securities pursuant to a Registration Statement
exceeds the amount of damages which such Holders have otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this paragraph (d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the sale of the Securities pursuant to a Registration Statement and shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made by or on behalf of any indemnified party.
6. Liquidated Damages Under Certain Circumstances. (a) Liquidated damages (the "LIQUIDATED DAMAGES") with respect to the Securities shall be assessed as follows if any of the following events occur (each such event in clauses (i) through (iv) below being herein called a "REGISTRATION DEFAULT"):
(i) any Registration Statement required by this Agreement is not filed with the Commission on or prior to the applicable Filing Deadline;
(ii) any Registration Statement required by this Agreement is not declared effective by the Commission on or prior to the applicable Effectiveness Deadline;
(iii) the Registered Exchange Offer has not been consummated on or prior to the Consummation Deadline; or
(iv) any Registration Statement required by this Agreement has been
declared effective by the Commission but (A) such Registration
Statement thereafter ceases to be effective or (B) such
Registration Statement or the related prospectus ceases to be
usable in connection with resales of Transfer Restricted
Securities during the periods specified herein because either
(1) any event occurs as a result of which the related
prospectus forming part of such Registration Statement would
include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein in the light of the circumstances under which they
were made not misleading, or (2) it shall be necessary to
amend such Registration Statement or supplement the related
prospectus, to comply with the Securities Act or the Exchange
Act or the respective rules thereunder.
Each of the foregoing will constitute a Registration Default whatever the reason for any such event and whether it is voluntary or involuntary or is beyond the control of the Company or pursuant to operation of law or as a result of any action or inaction by the Commission .
Liquidated Damages shall be payable on the Securities over and above the interest set forth in the title of the Securities from and including the date on which any such Registration Default shall occur to but excluding the date on which all such Registration Defaults have been cured, in an amount equal to $0.05 per week per $1,000 in principal amount of Transfer Restricted Securities held by a Holder (the "LIQUIDATED DAMAGES RATE") for each week or portion thereof during the first 90-day period immediately following the occurrence of such Registration Default. The Liquidated Damages Rate shall increase by an additional $0.05 per week per $1,000 in principal amount of Transfer Restricted Securities with respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a maximum Liquidated Damages Rate of $0.25 per week per $1,000 in principal amount of Transfer Restricted Securities. The Company shall in no event be required to pay Liquidated Damages for more than one Registration Default at any given time.
(b) A Registration Default referred to in Section 6(a)(iv) hereof shall be deemed not to have occurred and be continuing in relation to a Shelf Registration Statement or the related
prospectus if (i) such Registration Default has occurred solely as a result of
(x) the filing of a post-effective amendment to such Shelf Registration
Statement to incorporate annual audited financial information with respect to
the Company where such post-effective amendment is not yet effective and needs
to be declared effective to permit Holders to use the related prospectus or (y)
other material events, with respect to the Company that would need to be
described in such Shelf Registration Statement or the related prospectus and
(ii) in the case of clause (y), the Company is proceeding promptly and in good
faith to amend or supplement such Shelf Registration Statement and related
prospectus to describe such events; provided, however, that in any case if such
Registration Default occurs for a continuous period in excess of 30 days,
Liquidated Damages shall be payable in accordance with the above paragraph from
the day such Registration Default occurs until such Registration Default is
cured.
(c) Any amounts of Liquidated Damages due pursuant to Section 6(a) will be payable in cash on the regular interest payment dates with respect to the Securities. The amount of Liquidated Damages will be determined by multiplying the applicable Liquidated Damages Rate by the principal amount of the Securities and further multiplied by the number of weeks (or portion thereof) such Liquidated Damages Rate was applicable during such period.
(d) "TRANSFER RESTRICTED SECURITIES" means each Security until (i) the date on which such Security has been exchanged by a person other than a broker-dealer for a freely transferable Exchange Security in the Registered Exchange Offer, (ii) following the exchange by a broker-dealer in the Registered Exchange Offer of an Initial Security for an Exchange Security, the date on which such Exchange Security is sold to a purchaser who receives from such broker-dealer on or prior to the date of such sale a copy of the prospectus contained in the Exchange Offer Registration Statement, (iii) the date on which such Security has been effectively registered under the Securities Act and disposed of in accordance with the Shelf Registration Statement or (iv) the date on which such Security is distributed to the public pursuant to Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k) under the Securities Act.
7. Rules 144 and 144A. The Company shall use its best efforts to file the reports required to be filed by it under the Securities Act and the Exchange Act in a timely manner and, if at any time the Company is not required to file such reports, it will, upon the request of any Holder of Securities, make publicly available other information so long as necessary to permit sales of their securities pursuant to Rules 144 and 144A. The Company covenants that it will take such further action as any Holder of Securities may reasonably request, all to the extent required from time to time to enable such Holder to sell Securities without registration under the Securities Act within the limitation of the exemptions provided by Rules 144 and 144A (including the requirements of Rule 144A(d)(4)). The Company will provide a copy of this Agreement to prospective purchasers of Initial Securities identified to the Company by the Initial Purchaser upon request. Upon the request of any Holder of Initial Securities, the Company shall deliver to such Holder a written statement as to whether it has complied with such requirements. Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to require the Company to register any of its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted Securities covered by any Shelf Registration are to be sold in an underwritten offering, the investment banker or investment bankers and manager or managers that will administer the offering ("MANAGING
UNDERWRITERS") will be selected by the Holders of a majority in aggregate principal amount of such Transfer Restricted Securities to be included in such offering.
No person may participate in any underwritten registration hereunder unless such person (i) agrees to sell such person's Transfer Restricted Securities on the basis reasonably provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure by the Company to comply with its obligations under Section 1 and 2 hereof may result in material irreparable injury to the Initial Purchaser or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchaser or any Holder may obtain such relief as may be required to specifically enforce the Company's obligations under Sections 1 and 2 hereof. The Company further agrees to waive the defense in any action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after the date of this Agreement enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of the Company's securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, except by the Company and the written consent of the Holders of a majority in principal amount of the Securities affected by such amendment, modification, supplement, waiver or consents; provided, however, that the provisions of Section 6 of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions thereof may not be given, without the written consent of the Holders of at least two-thirds in principal amount of the Securities affected by such amendment, modification, supplement, waiver or consents.
(d) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand delivery, first-class mail, facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current address given by such Holder to the Company.
(2) if to the Initial Purchaser;
Credit Suisse First Boston Corporation Eleven Madison Avenue New York, NY 10010-3629 Fax No.: (212) 325-8278 Attention: Transactions Advisory Group
with a copy to:
Hughes Hubbard & Reed LLP One Battery Park Plaza New York, New York 10004 Fax No.: (212) 422-4726 Attention: Edward S. Davis
(3) if to the Company, at its address as follows:
Anadarko Petroleum Corporation 17001 Northchase Drive Houston, Texas 77060 Fax No.: (281) 875-2287 Attention: Suzanne Suter
with a copy to:
Andrews & Kurth L.L.P.
4200 Chase Tower
Houston, Texas 77002
Fax No.: (713) 220-4285
Attention: Michael O'Leary
All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; three business days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged by recipient's facsimile machine operator, if sent by facsimile transmission; and on the day delivered, if sent by overnight air courier guaranteeing next day delivery.
(e) Third Party Beneficiaries. The Holders shall be third party beneficiaries to the agreements made hereunder between the Company, on the one hand, and the Initial Purchaser, on the other hand, and shall have the right to enforce such agreements directly to the extent they may deem such enforcement necessary or advisable to protect their rights or the rights of Holders hereunder.
(f) Successors and Assigns. This Agreement shall be binding upon the Company and its successors and assigns.
(g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(j) Severability. If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company. Whenever the consent or approval of Holders of a specified percentage of principal amount of Securities is required hereunder, Securities held by the Company or its affiliates (other than subsequent Holders of Securities if such subsequent Holders are deemed to be affiliates solely by reason of their holdings of such Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage.
(l) Agent for Service; Submission to Jurisdiction; Waiver of Immunities. By the execution and delivery of this Agreement, the Issuer (i) acknowledges that it has, by separate written instrument, irrevocably designated and appointed CT Corporation System (and any successor entity), as its authorized agent upon which process may be served in any suit or proceeding arising out of or relating to this Agreement that may be instituted in any federal or state court in the State of New York or brought under federal or state securities laws, and acknowledges that CT Corporation System has accepted such designation, (ii) submits to the nonexclusive jurisdiction of any such court in any such suit or proceeding, and (iii) agrees that service of process upon CT Corporation System and written notice of said service to the Issuer shall be deemed in every respect effective service of process upon it in any such suit or proceeding. The Issuer further agrees to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of CT Corporation System in full force and effect so long as any of the Securities shall be outstanding. To the extent that the Issuer may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, it hereby irrevocably waives such immunity in respect of this Agreement, to the fullest extent permitted by law.
[REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Guarantor a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Initial Purchaser, the Issuer and the Guarantor in accordance with its terms.
Very truly yours,
ANADARKO FINANCE COMPANY
by
/s/ ALBERT L. RICHEY
-------------------------------------
Name: Albert L. Richey
Title: Vice President and Treasurer
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ANADARKO PETROLEUM CORPORATION
by
/s/ ALBERT L. RICHEY
-------------------------------------
Name: Albert L. Richey
Title: Vice President and Treasurer
|
The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
by
/s/ ROME ARNOLD
---------------------------------
Name: Rome Arnold
Title: Managing Director
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ANNEX A
Each broker-dealer that receives Exchange Securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. This Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities received in exchange for Initial Securities where such Initial Securities were acquired by such broker-dealer as a result of market-making activities or other trading activities. The Company has agreed that, for a period of 180 days after the Expiration Date (as defined herein), it will make this Prospectus available to any broker-dealer for use in connection with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account in exchange for Initial Securities, where such Initial Securities were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. This Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities received in exchange for Initial Securities where such Initial Securities were acquired as a result of market-making activities or other trading activities. The Company has agreed that, for a period of 180 days after the Expiration Date, it will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. In addition, until , 200_ , all dealers effecting transactions in the Exchange Securities may be required to deliver a prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange Securities by broker-dealers. Exchange Securities received by broker-dealers for their own account pursuant to the Exchange Offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the Exchange Securities or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such Exchange Securities. Any broker-dealer that resells Exchange Securities that were received by it for its own account pursuant to the Exchange Offer and any broker or dealer that participates in a distribution of such Exchange Securities may be deemed to be an "underwriter" within the meaning of the Securities Act and any profit on any such resale of Exchange Securities and any commission or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The Letter of Transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will promptly send additional copies of this Prospectus and any amendment or supplement to this Prospectus to any broker-dealer that requests such documents in the Letter of Transmittal. The Company has agreed to pay all expenses incident to the Exchange Offer (including the expenses of one counsel for the Holders of the Securities) other than commissions or concessions of any brokers or dealers and will indemnify the Holders of the Securities (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.
1. In addition, the legend required by Item 502(e) of Regulation S-K will appear on the back cover page of the Exchange Offer prospectus.
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of Exchange Securities. If the undersigned is a broker-dealer that will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities, it acknowledges that it will deliver a prospectus in connection with any resale of such Exchange Securities; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.
EXHIBIT 4(d)
$550,000,000
ANADARKO FINANCE COMPANY
6 3/4% SENIOR NOTES DUE 2011
ALL OBLIGATIONS FULLY AND UNCONDITIONALLY GUARANTEED
BY
ANADARKO PETROLEUM CORPORATION
REGISTRATION RIGHTS AGREEMENT
May 23, 2001
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010-3629
Dear Sirs:
Anadarko Finance Company, an unlimited liability company organized under the laws of the province of Nova Scotia, Canada (the "ISSUER"), proposes to issue and sell to Credit Suisse First Boston Corporation (the "INITIAL PURCHASER"), upon the terms set forth in a purchase agreement dated May 16, 2001 (the "PURCHASE AGREEMENT"), $550,000,000 aggregate principal amount of 6 3/4% Senior Notes due 2011 ( the "INITIAL SECURITIES"). The Initial Securities will be fully and unconditionally guaranteed pursuant to guarantees (the "GUARANTEES") by Anadarko Petroleum Corporation, a Delaware corporation (the "GUARANTOR" and, collectively with the Issuer, the "COMPANY"). The Initial Securities will be issued pursuant to an Indenture, dated as of April 26, 2001 (the "ORIGINAL INDENTURE") as amended and supplemented by the First Supplemental Indenture dated as of May 23, 2001 (the "INDENTURE SUPPLEMENT", and the Original Indenture as so amended and supplemented the "INDENTURE"), among the Issuer, the Guarantor and The Bank of New York, as trustee (the "TRUSTEE"). As an inducement to the Initial Purchaser to enter into the Purchase Agreement, the Company agrees with the Initial Purchaser, for the benefit of the Initial Purchaser and the holders of the Securities (as defined below) (collectively, the "HOLDERS"), as follows:
1. Registered Exchange Offer. Unless not permitted by applicable law (after the Company has complied with the ultimate paragraph of this Section 1), the Company shall prepare and, not later than 120 days (such 120th day being a "FILING DEADLINE") after the date on which the Initial Purchaser purchases the Initial Securities pursuant to the Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange Commission (the "COMMISSION") a
registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities (as defined in Section 6 hereof), who are not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer, to issue and deliver to such Holders, in exchange for the Initial Securities, a like aggregate principal amount of debt securities of the Issuer, guaranteed pursuant to guarantees by the Guarantor, in each case, issued under the Indenture in a transaction registered under the Securities Act and identical in all material respects to the Initial Securities and the Guarantees, respectively (collectively, the "EXCHANGE SECURITIES"). The Company shall use its best efforts to (i) cause the Exchange Offer Registration Statement to become effective under the Securities Act at the earliest possible time, but in no event later than 180 days after the Closing Date (such 180th day being the "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement effective for not less than 30 days (or longer, if required by applicable law) after the date notice of the Registered Exchange Offer is mailed to the Holders (such period being the "EXCHANGE OFFER REGISTRATION PERIOD").
Following the declaration of the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Registered Exchange Offer. The Company (i) will be entitled to consummate the Registered Exchange Offer 20 business days after the commencement thereof (provided that the Company has accepted all the Initial Securities theretofore validly tendered in accordance with the terms of the Registered Exchange Offer) and (ii) will be required to consummate the Registered Exchange Offer no later than 30 days after the date on which the Exchange Offer Registration Statement is declared effective (such 30th day being the "CONSUMMATION DEADLINE").
It is the objective of the Registered Exchange Offer to enable each Holder of Transfer Restricted Securities electing to exchange Initial Securities for Exchange Securities (assuming that such Holder is not an affiliate of the Company within the meaning of the Securities Act, acquires the Exchange Securities in the ordinary course of such Holder's business and has no arrangements with any person to participate in the distribution of the Exchange Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of the several states of the United States.
The Company acknowledges that, pursuant to current interpretations by the Commission's staff of Section 5 of the Securities Act, in the absence of an applicable exemption therefrom, (i) each Holder which is a broker-dealer electing to exchange Initial Securities, acquired for its own account as a result of market making activities or other trading activities, for Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus containing the information set forth in (a) Annex A hereto on the cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of Distribution" section of such prospectus in connection with a sale of any such Exchange Securities received by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) the Initial Purchaser if it elects to sell Securities (as defined below) acquired in exchange for Initial Securities constituting any portion of an unsold
allotment, is required to deliver a prospectus containing the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in connection with such sale.
The Company shall use its best efforts to keep the Exchange Offer Registration Statement effective and to amend and supplement the prospectus contained therein, in order to permit such prospectus to be lawfully delivered by all persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such persons must comply with such requirements in order to resell the Exchange Securities; provided, however, that (i) in the case where such prospectus and any amendment or supplement thereto must be delivered by an Exchanging Dealer or the Initial Purchaser, such period shall be the lesser of 180 days and the date on which all Exchanging Dealers and the Initial Purchaser have sold all Exchange Securities held by them (unless such period is extended pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus and any amendment or supplement thereto available to any broker-dealer for use in connection with any resale of any Exchange Securities for a period of not less than 180 days after the consummation of the Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, the Initial Purchaser holds Initial Securities acquired by it as part of its initial purchase from the Issuer, the Company, simultaneously with the delivery of the Exchange Securities pursuant to the Registered Exchange Offer, shall issue and deliver to the Initial Purchaser upon the written request of the Initial Purchaser, in exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by the Initial Purchaser, a like aggregate principal amount of debt securities of the Issuer, guaranteed pursuant to guarantees of the Guarantor, issued under the Indenture and identical in all material respects to the Exchange Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the Exchange Securities and the Private Exchange Securities are herein collectively called the "SECURITIES".
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20 business days (or longer, if required by applicable law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last business day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each Holder of the Initial Securities either Exchange Securities or Private Exchange Securities, as the case may be, equal in principal amount to the Initial Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be subject to the transfer restrictions set forth in the Indenture and that all the Securities of each series bearing the same interest rate and maturity will vote and consent together on all matters as one class and that none of the Securities of each series bearing the same interest rate and maturity will have the right to vote or consent as a class separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued pursuant to the Registered Exchange Offer and in the Private Exchange will accrue from the last interest payment date on which interest was paid on the Initial Securities surrendered in exchange therefor or, if no interest has been paid on the Initial Securities, from the date provided in the Initial Securities.
Each Holder participating in the Registered Exchange Offer shall be required to represent to the Company that at the time of the consummation of the Registered Exchange Offer (i) any Exchange Securities received by such Holder will be acquired in the ordinary course of business, (ii) such Holder will have no arrangements or understanding with any person to participate in the distribution of the Securities or the Exchange Securities within the meaning of the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of the Company or if it is an affiliate, such Holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of the Exchange Securities and (v) if such Holder is a broker-dealer, that it will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities.
Notwithstanding any other provisions hereof, the Company will ensure that (i) any Exchange Offer Registration Statement and any amendment thereto and any prospectus forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Exchange Offer Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any prospectus forming part of any Exchange Offer
Registration Statement, and any supplement to such prospectus, does not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
If following the date hereof there has been announced a change in Commission policy with respect to exchange offers that in the reasonable opinion of counsel to the Company raises a substantial question as to whether the Registered Exchange Offer is permitted by applicable federal law, the Company will seek a no-action letter or other favorable decision from the Commission allowing the Company to consummate the Registered Exchange Offer. The Company will pursue the issuance of such a decision to the Commission staff level. In connection with the foregoing, the Company will take all such other action as may be requested by the Commission or otherwise required in connection with the issuance of such decision, including without limitation (i) participating in telephonic conferences with the Commission, (ii) delivering to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases upon which such counsel has concluded that the Registered Exchange Offer should be permitted and (iii) diligently pursuing a resolution by the Commission staff.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
is not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Registered Exchange Offer is not consummated by the
210th day after the Closing Date, (iii) the Initial Purchaser so requests with
respect to the Private Exchange Securities (or the Initial Securities under the
conditions described in clause (i) or (ii)) or (iv) any Holder (other than an
Exchanging Dealer) is not eligible to participate in the Registered Exchange
Offer or, in the case of any Holder (other than an Exchanging Dealer) that
participates in the Registered Exchange Offer, such Holder does not receive
freely tradeable Exchange Securities on the date of the exchange and any such
Holder so requests prior to the 20th business day following the consummation of
the Registered Exchange Offer, the Company shall take the following action (the
date on which any of the conditions described in the foregoing clauses (i)
through (iv) occur, including in the case of clauses (iii) or (iv) the receipt
of the required notice, being a "TRIGGER DATE"):
(a) The Company shall promptly (but in no event more than 45 days after the Trigger Date (such 45th day being a "FILING DEADLINE")) file with the Commission and thereafter use its best efforts to cause to be declared effective no later than 60 days after the Trigger Date (such 60th day being an "EFFECTIVENESS DEADLINE") a registration statement (the "SHELF REGISTRATION STATEMENT" and, together with the Exchange Offer Registration Statement, the "REGISTRATION STATEMENT") on an appropriate form under the Securities Act relating to the offer and sale of the Transfer Restricted Securities by the Holders thereof from time to time in accordance with the methods of distribution set forth in the Shelf Registration Statement and Rule 415 under the Securities Act (hereinafter, the "SHELF REGISTRATION"); provided, however, that no Holder (other than the Initial Purchaser) shall be entitled to have the Securities held by it covered by such Shelf Registration Statement unless such Holder agrees in writing to be bound by all the provisions of this Agreement applicable to such Holder.
(b) The Company shall use its best efforts to keep the Shelf Registration Statement continuously effective in order to permit the prospectus included therein to be lawfully delivered by the Holders of the relevant Securities, for a period of two years (or for such longer period if extended pursuant to Section 3(j) below) from the date of its effectiveness or such shorter period that will terminate when all the Securities covered by the Shelf Registration Statement (i) have been sold pursuant thereto or (ii) are no longer restricted securities (as defined in Rule 144 under the Securities Act, or any successor rule thereunder). The Company shall be deemed not to have used its best efforts to keep the Shelf Registration Statement effective during the requisite period if it voluntarily takes any action that would result in Holders of Securities covered thereby not being able to offer and sell such Securities during that period, unless such action is required by applicable law.
(c) Notwithstanding any other provisions of this Agreement to the contrary, the Company shall cause the Shelf Registration Statement and the related prospectus and any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement, amendment or supplement, (i) to comply in all material respects with the applicable requirements of the Securities Act and the rules and regulations of the Commission and (ii) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
3. Registration Procedures. In connection with any Shelf Registration contemplated by Section 2 hereof and, to the extent applicable, any Registered Exchange Offer contemplated by Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to the Initial Purchaser, prior to the filing thereof with the Commission, a copy of the Registration Statement and each amendment thereof and each supplement, if any, to the prospectus included therein and, in the event that the Initial Purchaser (with respect to any portion of an unsold allotment from the original offering) is participating in the Registered Exchange Offer or the Shelf Registration Statement, the Company shall use its best efforts to reflect in each such document, when so filed with the Commission, such comments as the Initial Purchaser reasonably may propose; (ii) include the information set forth in Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer" section and in Annex C hereto in the "Plan of Distribution" section of the prospectus forming a part of the Exchange Offer Registration Statement and include the information set forth in Annex D hereto in the Letter of Transmittal delivered pursuant to the Registered Exchange Offer; (iii) if requested by the Initial Purchaser, include the information required by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in the prospectus forming a part of the Exchange Offer Registration Statement; (iv) include within the prospectus contained in the Exchange Offer Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchaser, which shall contain a summary statement of the positions taken or policies made by the staff of the Commission with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) of Exchange Securities received by such broker-dealer in the Registered Exchange Offer (a "PARTICIPATING BROKER-DEALER"), whether such positions or policies have been publicly disseminated by the staff of the Commission or such positions or policies, in the reasonable judgment of the Initial Purchaser based upon advice of counsel (which may be in-house counsel), represent the prevailing views of the staff of the Commission; and (v) in the case of a Shelf Registration Statement, include the names of the Holders who propose to sell Securities pursuant to the Shelf Registration Statement as selling securityholders.
(b) The Company shall give written notice to the Initial Purchaser, the Holders of the Securities and any Participating Broker-Dealer from whom the Company has received prior written notice that it will be a Participating Broker-Dealer in the Registered Exchange Offer (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the use of the prospectus until the requisite changes have been made):
(i) when the Registration Statement or any amendment thereto has been filed with the Commission and when the Registration Statement or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to the Registration Statement or the prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make changes in the Registration Statement or the prospectus in order that the Registration Statement or the prospectus do not contain an untrue statement of a material fact nor omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in light of the circumstances under which they were made) not misleading.
(c) The Company shall make every reasonable effort to obtain the withdrawal at the earliest possible time of any order suspending the effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Securities included within the coverage of the Shelf Registration, without charge, at least one copy of the Shelf Registration Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing, all exhibits thereto (including those, if any, incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer and the Initial Purchaser, and to any other Holder who so requests, without charge, at least one copy of the Exchange Offer Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if the Initial Purchaser or any such Holder requests, all exhibits thereto (including those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver to each Holder of Securities included within the coverage of the Shelf Registration, without charge, as many copies of the prospectus (including each preliminary prospectus) included in the Shelf Registration Statement and any amendment or supplement thereto as such person may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto by each of the selling Holders of the Securities in connection with the offering and sale of the Securities covered by the prospectus, or any amendment or supplement thereto, included in the Shelf Registration Statement.
(g) The Company shall deliver to the Initial Purchaser, any Exchanging Dealer, any Participating Broker-Dealer and such other persons required to deliver a prospectus following the Registered Exchange Offer, without charge, as many copies of the final prospectus included in the Exchange Offer Registration Statement and any amendment or supplement thereto as such persons may reasonably request. The Company consents, subject to the provisions of this Agreement, to the use of the prospectus or any amendment or supplement thereto by the Initial Purchaser, if necessary, any Participating Broker-Dealer and such other persons required to deliver a prospectus following the Registered Exchange Offer in connection with the offering and sale of the Exchange Securities covered by the prospectus, or any amendment or supplement thereto, included in the Exchange Offer Registration Statement.
(h) Prior to any public offering of the Securities pursuant to any Registration Statement the Company shall register or qualify or cooperate with the Holders of the Securities included therein and their respective counsel in connection with the registration or qualification of the Securities for offer and sale under the securities or "blue sky" laws of such states of the United States as any Holder of the Securities reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Securities covered by such Registration Statement; provided, however, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action which would subject it to general service of process or to taxation in any jurisdiction where it is not then so subject.
(i) The Company shall cooperate with the Holders of the Securities to facilitate the timely preparation and delivery of certificates representing the Securities to be sold pursuant to any Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Holders may request a reasonable period of time prior to sales of the Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 3(b) above during the period for
which the Company is required to maintain an effective Registration
Statement, the Company shall promptly prepare and file a post-effective
amendment to the Registration Statement or a supplement to the related
prospectus and any other required document so that, as thereafter
delivered to Holders of the Securities or purchasers of Securities, the
prospectus will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. If the Company notifies the
Initial Purchaser, the Holders of the Securities and any known
Participating Broker-Dealer in accordance with paragraphs (ii) through
(v) of Section 3(b) above to suspend the use of the prospectus until
the requisite changes to the prospectus have been made, then the
Initial Purchaser, the Holders of the Securities and any such
Participating Broker-Dealers shall suspend use of such prospectus, and
the period of effectiveness of the Shelf Registration Statement
provided for in Section 2(b) above and the Exchange Offer Registration
Statement provided for in Section 1 above shall each be extended by the
number of days from and including the date of the giving of such notice
to and including the date when the Initial Purchaser, the Holders of
the Securities and any known Participating Broker-Dealer shall have
received such amended or supplemented prospectus pursuant to this
Section 3(j).
(k) Not later than the effective date of the applicable Registration Statement, the Company will provide a CUSIP number for the Initial Securities, the Exchange Securities or the Private Exchange Securities, as the case may be. The Company will also provide the applicable trustee with printed certificates for the Initial Securities, the Exchange Securities or the Private Exchange Securities, as the case may be, in a form eligible for deposit with The Depository Trust Company, at or prior to the time of issuance of such Securities.
(l) The Company will comply with all rules and regulations of the Commission to the extent and so long as they are applicable to the Registered Exchange Offer or the Shelf Registration and will make generally available to its security holders (or otherwise provide in accordance with Section 11(a) of the Securities Act) an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and meeting the requirements of Rule 158 under the Securities Act.
(m) The Company shall cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended, in a timely manner and containing such changes, if any, as shall be necessary for such qualification. In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.
(n) The Company may require each Holder of Securities to be sold pursuant to the Shelf Registration Statement to furnish to the Company such information regarding the Holder and the distribution of the Securities as the Company may from time to time
reasonably require for inclusion in the Shelf Registration Statement, and the Company may exclude from such registration the Securities of any Holder that unreasonably fails to furnish such information within a reasonable time after receiving such request.
(o) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form)
and take all such other action, if any, as any Holder of the Securities
may reasonably request in order to facilitate the disposition of the
Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Company shall
(i) make reasonably available for inspection by the Holders of the
Securities, any underwriter participating in any disposition pursuant
to the Shelf Registration Statement and any attorney, accountant or
other agent retained by the Holders of the Securities or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and (ii) cause the
Company's officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by the Holders of
the Securities or any such underwriter, attorney, accountant or agent
in connection with the Shelf Registration Statement, in each case, as
shall be reasonably necessary to enable such persons to conduct a
reasonable investigation within the meaning of Section 11 of the
Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated by the Initial Purchaser for
itself and on behalf of the other parties, by one counsel designated by
and on behalf of such other parties as described in Section 4 hereof;
provided further, however, that any information that is designated in
writing by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the Holders
or any such underwriter, attorney, accountant or other agent, unless
such disclosure is made in connection with a court proceeding or
required by law, or such information is or becomes available to the
public generally or through a third person without, to the knowledge of
any recipient of confidential information, an accompanying obligation
of confidentiality or is independently developed.
(q) In the case of any Shelf Registration, the Company, if requested by any Holder of Securities covered thereby, shall cause (i) its counsel (including both staff counsel and outside counsel, with the overall coverage of such opinions allocated between them in a customary manner) to deliver opinions and updates thereof relating to the Securities in customary form addressed to such Holders and the managing underwriters, if any, thereof and dated, in the case of the initial opinions, the effective date of such Shelf Registration Statement (it being agreed that the matters to be covered by such opinions shall include, without limitation, the due incorporation and good standing of the Company and its significant subsidiaries; the qualification of the Company and its subsidiaries to transact business as foreign corporations; the due authorization, execution and delivery of the relevant agreement of the type referred to in Section 3(o) hereof; the due authorization, execution, authentication and issuance, and the validity and enforceability, of the applicable Securities; the absence of material legal or governmental proceedings involving the Company and its subsidiaries; the absence of governmental approvals required to be obtained in connection with the Shelf Registration Statement, the offering and sale of the applicable Securities, or any agreement of the type
referred to in Section 3(o) hereof; the compliance as to form of such Shelf Registration Statement and any documents incorporated by reference therein and of the Indenture with the requirements of the Securities Act and the Trust Indenture Act, respectively; and, as of the date of the opinion and as of the effective date of the Shelf Registration Statement or most recent post-effective amendment thereto, as the case may be, the absence from such Shelf Registration Statement and the prospectus included therein, as then amended or supplemented, and from any documents incorporated by reference therein of an untrue statement of a material fact or the omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any such documents, in the light of the circumstances existing at the time that such documents were filed with the Commission under the Exchange Act); (ii) its officers to execute and deliver all customary documents and certificates and updates thereof requested by any underwriters of the applicable Securities and (iii) its independent public accountants and the independent public accountants with respect to any other entity for which financial information is provided in the Shelf Registration Statement to provide to the selling Holders of the applicable Securities and any underwriter therefor a comfort letter in customary form and covering matters of the type customarily covered in comfort letters in connection with underwritten offerings, subject to receipt of appropriate documentation as contemplated, and only if permitted, by Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if requested by the Initial Purchaser or any known Participating Broker-Dealer, the Company shall cause (i) its counsel to deliver to the Initial Purchaser or such Participating Broker-Dealer signed opinions in the forms set forth in Section 6(c)(i)-(iii) of the Purchase Agreement with such changes as are customary in connection with the preparation of a Registration Statement and (ii) its independent public accountants and the independent public accountants with respect to any other entity for which financial information is provided in the Registration Statement to deliver to the Initial Purchaser or such Participating Broker-Dealer a comfort letter, in customary form, meeting the requirements as to the substance thereof as set forth in Section 6(a) of the Purchase Agreement, with appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to be consummated, upon delivery of the Initial Securities by Holders to the Company (or to such other Person as directed by the Company) in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be, the Company shall mark, or caused to be marked, on the Initial Securities so exchanged that such Initial Securities are being canceled in exchange for the Exchange Securities or the Private Exchange Securities, as the case may be; in no event shall the Initial Securities be marked as paid or otherwise satisfied.
(t) The Company will use its best efforts to (a) if the Initial Securities have been rated prior to the initial sale of such Initial Securities, confirm such ratings will apply to the Securities covered by a Registration Statement, or (b) if the Initial Securities were not previously rated, cause the Securities covered by a Registration Statement to be rated with the appropriate rating agencies, if so requested by Holders of a majority in
aggregate principal amount of Securities covered by such Registration Statement, or by the managing underwriters, if any.
(u) In the event that any broker-dealer registered under the Exchange Act shall underwrite any Securities or participate as a member of an underwriting syndicate or selling group or "assist in the distribution" (within the meaning of the Conduct Rules (the "RULES") of the National Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of such Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company will assist such broker-dealer in complying with the requirements of such Rules, including, without limitation, by (i) if such Rules, including Rule 2720, shall so require, engaging a "qualified independent underwriter" (as defined in Rule 2720) to participate in the preparation of the Registration Statement relating to such Securities, to exercise usual standards of due diligence in respect thereto and, if any portion of the offering contemplated by such Registration Statement is an underwritten offering or is made through a placement or sales agent, to recommend the yield of such Securities, (ii) indemnifying any such qualified independent underwriter to the extent of the indemnification of underwriters provided in Section 5 hereof and (iii) providing such information to such broker-dealer as may be required in order for such broker-dealer to comply with the requirements of the Rules.
(v) The Company shall use its best efforts to take all other steps necessary to effect the registration of the Securities covered by a Registration Statement contemplated hereby.
4. Registration Expenses. (a) All expenses incident to the Company's performance of and compliance with this Agreement will be borne by the Company, regardless of whether a Registration Statement is ever filed or becomes effective, including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing certificates for the Securities to be issued in the Registered Exchange Offer and the Private Exchange and printing of Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company;
(v) all application and filing fees in connection with listing the Exchange Securities on a national securities exchange or automated quotation system pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified public accountants of the Company (including the expenses of any special audit and comfort letters required by or incident to such performance).
The Company will bear its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expenses of any annual audit and the fees and expenses of any person, including special experts, retained by the Company.
(b) In connection with any Registration Statement required by this Agreement, the Company will reimburse the Initial Purchaser and the Holders of Transfer Restricted Securities who are tendering Initial Securities in the Registered Exchange Offer and/or selling or reselling Securities pursuant to the "Plan of Distribution" contained in the Exchange Offer Registration Statement or the Shelf Registration Statement, as applicable, for the reasonable fees and disbursements of not more than one counsel, who shall be Hughes Hubbard & Reed LLP unless another firm shall be chosen by the Holders of a majority in principal amount of the Transfer Restricted Securities for whose benefit such Registration Statement is being prepared.
5. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Holder of the Securities, any Participating Broker-Dealer and each
person, if any, who controls such Holder or such Participating Broker-Dealer
within the meaning of the Securities Act or the Exchange Act (each Holder, any
Participating Broker-Dealer and such controlling persons are referred to
collectively as the "INDEMNIFIED PARTIES") from and against any losses, claims,
damages or liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages, liabilities or
actions relating to purchases and sales of the Securities) to which each
Indemnified Party may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus relating to a
Shelf Registration, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse, as
incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
(i) the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder specifically for
inclusion therein and (ii) with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus relating
to a Shelf Registration Statement, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Holder or Participating
Broker-Dealer from whom the person asserting any such losses, claims, damages or
liabilities purchased the Securities concerned, to the extent that a prospectus
relating to such Securities was required to be delivered by such Holder or
Participating Broker-Dealer under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability of such Holder or
Participating Broker-Dealer results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Securities to such person, a copy of the final prospectus if the Company
had previously furnished copies thereof to such Holder or Participating
Broker-Dealer; provided
further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party. The Company shall also indemnify underwriters, their officers and directors and each person who controls such underwriters within the meaning of the Securities Act or the Exchange Act to the same extent as provided above with respect to the indemnification of the Holders of the Securities if requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will indemnify and hold harmless the Company and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act from and against any losses, claims, damages or liabilities or any actions in respect thereof, to which the Company or any such controlling person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement or prospectus or in any amendment or supplement thereto or in any preliminary prospectus relating to a Shelf Registration, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with written information pertaining to such Holder and furnished to the Company by or on behalf of such Holder specifically for inclusion therein; and, subject to the limitation set forth immediately preceding this clause, shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, claim, damage, liability or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder may otherwise have to the Company or any of its controlling persons.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 5(a) or 5(b), such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for (a) the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by a majority of the Holders, in the case of parties indemnified pursuant to Section 5(a), and by the Guarantor, in the case of parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action, and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the exchange of the Securities,
pursuant to the Registered Exchange Offer, or (ii) if the allocation provided by
the foregoing clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
such Holder or such other indemnified party, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 5(d), the Holders of the Securities shall not be required to contribute
any amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Securities pursuant to a Registration Statement
exceeds the amount of damages which such Holders have otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this paragraph (d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such
indemnified party and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the sale of the Securities pursuant to a Registration Statement and shall remain in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of any indemnified party.
6. Liquidated Damages Under Certain Circumstances. (a) Liquidated damages (the "LIQUIDATED DAMAGES") with respect to the Securities shall be assessed as follows if any of the following events occur (each such event in clauses (i) through (iv) below being herein called a "REGISTRATION DEFAULT"):
(i) any Registration Statement required by this Agreement is not filed with the Commission on or prior to the applicable Filing Deadline;
(ii) any Registration Statement required by this Agreement is not declared effective by the Commission on or prior to the applicable Effectiveness Deadline;
(iii) the Registered Exchange Offer has not been consummated on or prior to the Consummation Deadline; or
(iv) any Registration Statement required by this Agreement has been
declared effective by the Commission but (A) such Registration
Statement thereafter ceases to be effective or (B) such
Registration Statement or the related prospectus ceases to be
usable in connection with resales of Transfer Restricted
Securities during the periods specified herein because either
(1) any event occurs as a result of which the related
prospectus forming part of such Registration Statement would
include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein in the light of the circumstances under which they
were made not misleading, or (2) it shall be necessary to
amend such Registration Statement or supplement the related
prospectus, to comply with the Securities Act or the Exchange
Act or the respective rules thereunder.
Each of the foregoing will constitute a Registration Default whatever the reason for any such event and whether it is voluntary or involuntary or is beyond the control of the Company or pursuant to operation of law or as a result of any action or inaction by the Commission .
Liquidated Damages shall be payable on the Securities over and above the interest set forth in the title of the Securities from and including the date on which any such Registration Default shall occur to but excluding the date on which all such Registration Defaults have been cured, in an amount equal to $0.05 per week per $1,000 in principal amount of Transfer Restricted Securities held by a Holder (the "LIQUIDATED DAMAGES RATE") for each week or portion thereof during the first 90-day period immediately following the occurrence of such Registration Default. The Liquidated Damages Rate shall increase by an additional $0.05 per week per $1,000 in principal amount of Transfer
Restricted Securities with respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a maximum Liquidated Damages Rate of $0.25 per week per $1,000 in principal amount of Transfer Restricted Securities. The Company shall in no event be required to pay Liquidated Damages for more than one Registration Default at any given time.
(b) A Registration Default referred to in Section 6(a)(iv) hereof shall be deemed not to have occurred and be continuing in relation to a Shelf Registration Statement or the related prospectus if (i) such Registration Default has occurred solely as a result of (x) the filing of a post-effective amendment to such Shelf Registration Statement to incorporate annual audited financial information with respect to the Company where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders to use the related prospectus or (y) other material events, with respect to the Company that would need to be described in such Shelf Registration Statement or the related prospectus and (ii) in the case of clause (y), the Company is proceeding promptly and in good faith to amend or supplement such Shelf Registration Statement and related prospectus to describe such events; provided, however, that in any case if such Registration Default occurs for a continuous period in excess of 30 days, Liquidated Damages shall be payable in accordance with the above paragraph from the day such Registration Default occurs until such Registration Default is cured.
(c) Any amounts of Liquidated Damages due pursuant to Section 6(a) will be payable in cash on the regular interest payment dates with respect to the Securities. The amount of Liquidated Damages will be determined by multiplying the applicable Liquidated Damages Rate by the principal amount of the Securities and further multiplied by the number of weeks (or portion thereof) such Liquidated Damages Rate was applicable during such period.
(d) "TRANSFER RESTRICTED SECURITIES" means each Security until (i) the date on which such Security has been exchanged by a person other than a broker-dealer for a freely transferable Exchange Security in the Registered Exchange Offer, (ii) following the exchange by a broker-dealer in the Registered Exchange Offer of an Initial Security for an Exchange Security, the date on which such Exchange Security is sold to a purchaser who receives from such broker-dealer on or prior to the date of such sale a copy of the prospectus contained in the Exchange Offer Registration Statement, (iii) the date on which such Security has been effectively registered under the Securities Act and disposed of in accordance with the Shelf Registration Statement or (iv) the date on which such Security is distributed to the public pursuant to Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k) under the Securities Act.
7. Rules 144 and 144A. The Company shall use its best efforts to file the reports required to be filed by it under the Securities Act and the Exchange Act in a timely manner and, if at any time the Company is not required to file such reports, it will, upon the request of any Holder of Securities, make publicly available other information so long as necessary to permit sales of their securities pursuant to Rules 144 and 144A. The Company covenants that it will take such further action as any Holder of Securities may reasonably request, all to the extent required from time to time to enable such Holder to sell Securities without registration under the Securities Act within the limitation of the exemptions provided by Rules 144 and 144A (including the requirements of Rule 144A(d)(4)). The Company will provide a copy of this Agreement to prospective purchasers of Initial Securities identified to the Company by the Initial Purchaser upon request. Upon the request of any Holder of Initial Securities, the Company shall deliver to such Holder a written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to require the Company to register any of its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted Securities covered by any Shelf Registration are to be sold in an underwritten offering, the investment banker or investment bankers and manager or managers that will administer the offering ("MANAGING UNDERWRITERS") will be selected by the Holders of a majority in aggregate principal amount of such Transfer Restricted Securities to be included in such offering.
No person may participate in any underwritten registration hereunder unless such person (i) agrees to sell such person's Transfer Restricted Securities on the basis reasonably provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure by the Company to comply with its obligations under Section 1 and 2 hereof may result in material irreparable injury to the Initial Purchaser or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, the Initial Purchaser or any Holder may obtain such relief as may be required to specifically enforce the Company's obligations under Sections 1 and 2 hereof. The Company further agrees to waive the defense in any action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after the date of this Agreement enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. The Company represents and warrants that the rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of the Company's securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, except by the Company and the written consent of the Holders of a majority in principal amount of the Securities affected by such amendment, modification, supplement, waiver or consents; provided, however, that the provisions of Section 6 of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions thereof may not be given, without the written consent of the Holders of at least two-thirds in principal amount of the Securities affected by such amendment, modification, supplement, waiver or consents.
(d) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand delivery, first-class mail, facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current address given by such Holder to the Company.
(2) if to the Initial Purchaser;
Credit Suisse First Boston Corporation Eleven Madison Avenue New York, NY 10010-3629 Fax No.: (212) 325-8278 Attention: Transactions Advisory Group
with a copy to:
Hughes Hubbard & Reed LLP One Battery Park Plaza New York, New York 10004 Fax No.: (212) 422-4726 Attention: Edward S. Davis
(3) if to the Company, at its address as follows:
Anadarko Petroleum Corporation 17001 Northchase Drive Houston, Texas 77060 Fax No.: (281) 875-2287 Attention: Suzanne Suter
with a copy to:
Andrews & Kurth L.L.P.
4200 Chase Tower
Houston, Texas 77002
Fax No.: (713) 220-4285
Attention: Michael O'Leary
All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; three business days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged by recipient's facsimile machine operator, if sent by facsimile transmission; and on the day delivered, if sent by overnight air courier guaranteeing next day delivery.
(e) Third Party Beneficiaries. The Holders shall be third party beneficiaries to the agreements made hereunder between the Company, on the one hand, and the Initial Purchaser, on the other hand, and shall have the right to enforce such agreements directly to the extent they may deem such enforcement necessary or advisable to protect their rights or the rights of Holders hereunder.
(f) Successors and Assigns. This Agreement shall be binding upon the Company and its successors and assigns.
(g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(j) Severability. If any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company. Whenever the consent or approval of Holders of a specified percentage of principal amount of Securities is required hereunder, Securities held by the Company or its affiliates (other than subsequent Holders of Securities if such subsequent Holders are deemed to be affiliates solely by reason of their holdings of such Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage.
(l) Agent for Service; Submission to Jurisdiction; Waiver of Immunities. By the execution and delivery of this Agreement, each of the Issuer and the Guarantor (i) acknowledges that it has, by separate written instrument, irrevocably designated and appointed CT Corporation System (and any successor entity), as its authorized agent upon which process may be served in any suit or proceeding arising out of or relating to this Agreement that may be instituted in any federal or state court in the State of New York or brought under federal or state securities laws, and acknowledges that CT Corporation System has accepted such designation, (ii) submits to the nonexclusive jurisdiction of any such court in any such suit or proceeding, and (iii) agrees that service of process upon CT Corporation System and written notice of such service to the Issuer and the Guarantor shall be deemed in every respect effective service of process upon it in any such suit or proceeding. The Issuer and the Guarantor further agree to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of CT Corporation System in full force and effect so long as any of the Securities shall be outstanding. To the extent that the Issuer and the Guarantor may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, it hereby irrevocably waives such immunity in respect of this Agreement, to the fullest extent permitted by law.
[REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Guarantor a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Initial Purchaser, the Issuer and the Guarantor in accordance with its terms.
Very truly yours,
ANADARKO FINANCE COMPANY
by
/s/ ALBERT L. RICHEY ------------------------------------- Name: Albert L. Richey Title: Vice President and Treasurer |
ANADARKO PETROLEUM CORPORATION
by
/s/ ALBERT L. RICHEY
-------------------------------------
Name: Albert L. Richey
Title: Vice President and Treasurer
|
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
by
/s/ ROME ARNOLD
------------------------------------------
Name: Rome Arnold
Title: Managing Director
|
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. This Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities received in exchange for Initial Securities where such Initial Securities were acquired by such broker-dealer as a result of market-making activities or other trading activities. The Company has agreed that, for a period of 180 days after the Expiration Date (as defined herein), it will make this Prospectus available to any broker-dealer for use in connection with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account in exchange for Initial Securities, where such Initial Securities were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such Exchange Securities. This Prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of Exchange Securities received in exchange for Initial Securities where such Initial Securities were acquired as a result of market-making activities or other trading activities. The Company has agreed that, for a period of 180 days after the Expiration Date, it will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. In addition, until , 200_ , all dealers effecting transactions in the Exchange Securities may be required to deliver a prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange Securities by broker-dealers. Exchange Securities received by broker-dealers for their own account pursuant to the Exchange Offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the Exchange Securities or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer or the purchasers of any such Exchange Securities. Any broker-dealer that resells Exchange Securities that were received by it for its own account pursuant to the Exchange Offer and any broker or dealer that participates in a distribution of such Exchange Securities may be deemed to be an "underwriter" within the meaning of the Securities Act and any profit on any such resale of Exchange Securities and any commission or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The Letter of Transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will promptly send additional copies of this Prospectus and any amendment or supplement to this Prospectus to any broker-dealer that requests such documents in the Letter of Transmittal. The Company has agreed to pay all expenses incident to the Exchange Offer (including the expenses of one counsel for the Holders of the Securities) other than commissions or concessions of any brokers or dealers and will indemnify the Holders of the Securities (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of Exchange Securities. If the undersigned is a broker-dealer that will receive Exchange Securities for its own account in exchange for Initial Securities that were acquired as a result of market-making activities or other trading activities, it acknowledges that it will deliver a prospectus in connection with any resale of such Exchange Securities; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.
Exhibit 12(a)
ANADARKO PETROLEUM CORPORATION
CONSOLIDATED STATEMENT OF COMPUTATION OF RATIOS OF
EARNINGS TO FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
THREE MONTHS ENDED MARCH 31, 2001 AND FIVE YEARS ENDED DECEMBER 31, 2000
Three Months
Ended Years Ended December 31
March 31 ---------------------------------------------------------
millions 2001 2000 1999 1998 1997 1996
------------ --------- --------- --------- --------- ---------
Gross Income $ 1,076 $ 1,519.0 $ 178.9 $ (7.4) $ 205.3 $ 196.8
Rentals 3 15.9 11.1 12.5 8.3 4.2
------- --------- --------- --------- --------- ---------
Earnings 1,079 1,534.9 190.0 5.1 213.6 201.0
======= ========= ========= ========= ========= =========
Gross Interest Expense 73 192.9 96.1 82.4 62.0 56.0
Rentals 3 15.9 11.1 12.5 8.3 4.2
------- --------- --------- --------- --------- ---------
Fixed Charges $ 76 $ 208.8 $ 107.2 $ 94.9 $ 70.3 $ 60.2
======= ========= ========= ========= ========= =========
Preferred Stock
Dividends 4 17.1 17.1 10.9 -- --
------- --------- --------- --------- --------- ---------
Combined Fixed Charges
and Preferred Stock
Dividends $ 80 $ 225.9 $ 124.3 $ 105.8 $ 70.3 $ 60.2
======= ========= ========= ========= ========= =========
Ratio of Earnings to
Fixed Charges 14.16 7.35 1.77 0.05 3.04 3.34
======= ========= ========= ========= ========= =========
Ratio of Earnings to
Combined Fixed Charges
and Preferred Stock
Dividends 13.40 6.80 1.53 0.05 3.04 3.34
======= ========= ========= ========= ========= =========
|
As a result of the Company's net loss in 1998, Anadarko's earnings did not cover fixed charges by $90 million and did not cover combined fixed charges and preferred stock dividends by $101 million.
These ratios were computed by dividing earnings by either fixed charges or combined fixed charges and preferred stock dividends. For this purpose, earnings include income before income taxes and fixed charges. Fixed charges include interest and amortization of debt expenses and the estimated interest component of rentals. Preferred stock dividends are adjusted to reflect the amount of pretax earnings required for payment.
EXHIBIT 15(a)
Arthur Andersen LLP
Suite 5600
901 Main Street
Dallas TX 75202
Tel 214-741-8300
www.arthurandersen.com
Anadarko Petroleum Corporation
17001 Northchase Drive
Houston, Texas 77060-1714
July 13, 2001
We are aware that Anadarko Finance Company has incorporated by reference in its Registration Statement on Form S-4 the Form 10-Q for Union Pacific Resources Group Inc. for the quarter ended March 31, 2000, which includes our report dated April 26, 2000, covering the unaudited interim financial information contained therein. Pursuant to Regulation C of the Securities Act of 1933, that report is not considered a part of the registration statement prepared or certified by our firm or a report prepared or certified by our firm within the meaning of Sections 7 and 11 of the Act.
Very truly yours,
/s/ Arthur Andersen LLP |
EXHIBIT 23(c)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Anadarko Petroleum Corporation
We consent to the use of our reports incorporated herein by reference and to our firm under the heading "Experts" in the prospectus. Our report refers to a change in method of accounting for foreign crude oil inventories, effective January 1, 2000.
/s/ KPMG LLP Houston, Texas July 13, 2001 |
EXHIBIT 23(d)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-4 of Anadarko Finance Company of our report dated March 3, 2000 included in the Annual Report on Form 10-K of Union Pacific Resources Group Inc. for the year ended December 31, 1999 and to all references to our Firm included in this Registration Statement.
/s/ Arthur Andersen LLP Fort Worth, Texas July 13, 2001 |
EXHIBIT 23(e)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of Anadarko Finance Company on Form S-4 of our report, dated January 26, 1998, on the consolidated statements of income, changes in shareholders' equity and cash flows of Union Pacific Resources Group Inc. for the year ended December 31, 1997, appearing in the Annual Report on Form 10-K of Union Pacific Resources Group Inc. for the year ended December 31, 1999 (such financial statements are not presented therein). We also consent to the reference to us under the heading "Experts" in the Prospectus, which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP DELOITTE & TOUCHE LLP Dallas, Texas July 13, 2001 |
EXHIBIT 25(a)
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) [ ]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
|
Anadarko Finance Company
(Exact name of obligor as specified in its charter)
Nova Scotia, Canada N/A
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
|
Anadarko Petroleum Corporation
(Exact name of obligor as specified in its charter)
Delaware 76-0146568
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
17001 Northchase Drive
Houston, Texas 77060-2141
(Address of principal executive offices) (Zip code)
-------------
|
6-3/4% Senior Exchange Notes due 2011 7-1/2% Senior Exchange Notes due 2031
(Title of the indenture securities)
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.
--------------------------------------------------------------------------------
Name Address
--------------------------------------------------------------------------------
Superintendent of Banks of the 2 Rector Street, New York,
State of New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
|
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 10th day of July, 2001.
THE BANK OF NEW YORK
By: /s/ MING SHIANG ---------------------------------- Name: MING SHIANG Title: VICE PRESIDENT |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 2001, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
In Thousands
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency
and coin......................................... $2,811,275
Interest-bearing balances........................... 3,133,222
Securities
Held-to-maturity securities......................... 147,185
Available-for-sale securities....................... 5,403,923
Federal funds sold and Securities purchased
under agreements to resell.......................... 3,378,526
Loans and lease financing receivables:
Loans and leases held for sale...................... 74,702
Loans and leases, net of unearned income............ 37,471,621
LESS: Allowance for loan and lease losses........... 599,061
Loans and leases, net of unearned
income and allowance.............................. 36,872,560
Trading Assets......................................... 11,757,036
Premises and fixed assets (including
capitalized leases)................................. 768,795
Other real estate owned................................ 1,078
Investments in unconsolidated subsidiaries
and associated companies............................ 193,126
Customers' liability to this bank on
acceptances outstanding............................. 592,118
Intangible assets......................................
Goodwill............................................ 1,300,295
Other intangible assets............................. 122,143
Other assets........................................... 3,676,375
-----------
Total assets........................................... $70,232,359
===========
|
LIABILITIES
Deposits:
In domestic offices............................... $25,962,242
Noninterest-bearing............................... 10,586,346
Interest-bearing.................................. 15,395,896
In foreign offices, Edge and Agreement
subsidiaries, and IBFs.......................... 24,862,377
Noninterest-bearing............................... 373,085
Interest-bearing.................................. 24,489,292
Federal funds purchased and securities
sold under agreements to repurchase............... 1,446,874
Trading liabilities.................................. 2,373,361
Other borrowed money:
(includes mortgage indebtedness and
obligations under capitalized leases)............. 1,381,512
Bank's liability on acceptances executed
and outstanding................................... 592,804
Subordinated notes and debentures.................... 1,646,000
Other liabilities.................................... 5,373,065
-----------
Total liabilities.................................... $63,658,235
===========
EQUITY CAPITAL
Common stock......................................... 1,135,284
Surplus.............................................. 1,008,773
Retained earnings.................................... 4,426,033
Accumulated other comprehensive income............... 4,034
Other equity capital components...................... 0
-----------
Total equity capital................................. 6,574,124
-----------
Total liabilities and equity capital................. $70,232,359
===========
|
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro, Senior Vice President and Comptroller
We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true and correct.
Thomas A. Renyi
Gerald L. Hassell } Directors
Alan R. Griffith
EXHIBIT 99(a)
LETTER OF TRANSMITTAL
ANADARKO FINANCE COMPANY
OFFER TO EXCHANGE
6 3/4% SERIES B SENIOR NOTES DUE 2011 AND
7 1/2% SERIES B SENIOR NOTES DUE 2031
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED,
PURSUANT TO THE PROSPECTUS, DATED , 2001,
FOR ALL ISSUED AND OUTSTANDING
6 3/4% SERIES A SENIOR NOTES DUE 2011 AND
7 1/2% SERIES A SENIOR NOTES DUE 2031, RESPECTIVELY
The Exchange Agent for the Exchange Offer is:
THE BANK OF NEW YORK
By Regular or Certified Mail or By Facsimile: To Confirm by Telephone or for
Overnight Courier or Hand: (Eligible Guarantor Institutions Only) Information Call:
The Bank of New York The Bank of New York The Bank of New York
101 Barclay St., 21 West 101 Barclay St., 21 West Attention: Corporate Trust
New York, NY 10286 New York, NY 10286 Administration
Attention: Corporate Trust Attention: Corporate Trust Phone: (212) 815-3750
Administration Administration
Fax: (212) 815-5915
|
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN THOSE LISTED ABOVE, OR TRANSMISSION OF INSTRUCTIONS BY FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY OF YOUR OLD NOTES.
By signing this Letter of Transmittal, you hereby acknowledge that you have received and reviewed the Prospectus, dated , 2001, of Anadarko Finance Company and this Letter of Transmittal. The Prospectus, together with this Letter of Transmittal, constitutes Anadarko Finance Company's offer to exchange (i) an aggregate principal amount of up to $950,000,000 of its 6 3/4% Series B Senior Notes due 2011 (the "New 10-Year Notes"), which have been registered under the Securities Act of 1933, as amended (the "Securities Act"), for a like principal amount of our issued and outstanding 6 3/4% Series A Senior Notes due 2011 (the "Old 10-Year Notes") and (ii) an aggregate principal amount of up to $900,000,000 of its 7 1/2% Series B Senior Notes due 2031 (the "New 30-Year Notes" together with the New 10-Year Notes, the "New Notes"), which have been registered under the Securities Act, for a like principal amount of our 7 1/2% Series A Senior Notes due 2031 (the "Old 30-Year Notes" together with the Old 10-Year Notes, the "Old Notes"). The Old Notes were issued in an offering under Rule 144A and Regulation S of the Securities Act that was not registered under the Securities Act. This Exchange Offer is being extended to all holders of the Old Notes.
If you decide to tender your Old Notes, and we accept the Old Notes, this will constitute a binding agreement between you and Anadarko Finance Company, subject to the terms and conditions set forth in the Prospectus and this Letter of Transmittal. Unless you comply with the procedures described in the Prospectus under
the caption "The Exchange Offer -- Guaranteed Delivery Procedures," you must do one of the following on or prior to the expiration of the Exchange Offer to participate in the Exchange Offer:
o tender your Old Notes by sending the certificates for your Old Notes, in proper form for transfer, a properly completed and duly executed Letter of Transmittal, with any required signature guarantees, and all other documents required by this Letter of Transmittal to the Exchange Agent at one of the addresses listed above; or
o tender your Old Notes by using the book-entry transfer procedures described in the Prospectus under the caption "The Exchange Offer -- Book-Entry Transfer," and transmitting this Letter of Transmittal, with any required signature guarantees, or an Agent's Message (as defined below) instead of this Letter of Transmittal to the Exchange Agent.
In order for a book-entry transfer to constitute a valid tender of your Old Notes in the Exchange Offer, the Exchange Agent must receive a confirmation of book-entry transfer (a "Book-Entry Confirmation") of your Old Notes into the Exchange Agent's account at The Depository Trust Company prior to the expiration of the Exchange Offer. The term "Agent's Message" means a message, transmitted by The Depository Trust Company and received by the Exchange Agent and forming a part of the Book-Entry Confirmation, which states that The Depository Trust Company has received an express acknowledgment from you that you have received and have agreed to be bound by the terms of this Letter of Transmittal. If you use this procedure, we may enforce the Letter of Transmittal against you.
DELIVERY OF DOCUMENTS TO THE DEPOSITORY TRUST COMPANY'S BOOK-ENTRY
TRANSFER FACILITY WILL NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
If you are a holder of Old Notes and wish to tender your Old Notes in the Exchange Offer, but (1) the Old Notes are not immediately available, (2) time will not permit your Old Notes or other required documents to reach the Exchange Agent before the expiration of the Exchange Offer, or (3) the procedure for book-entry transfer cannot be completed prior to the expiration of the Exchange Offer, you may tender Old Notes by following the procedures described in the Prospectus under the caption "The Exchange Offer -- Guaranteed Delivery Procedures."
Only registered holders of Old Notes -- which term, for purposes of this Letter of Transmittal, includes any participant in The Depository Trust Company's system whose name appears on a security position listing as the owner of the Old Notes -- are entitled to tender their Old Notes for exchange in the Exchange Offer. If you are a beneficial owner whose Old Notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and you wish to tender your Old Notes in the Exchange Offer, you should promptly contact the person in whose name the Old Notes are registered and instruct that person to tender on your behalf. If you wish to tender in the Exchange Offer on your own behalf, prior to completing and executing this Letter of Transmittal and delivering the certificates for your Old Notes, you must either make appropriate arrangements to register ownership of the Old Notes in your name or obtain a properly completed bond power from the person in whose name the Old Notes are registered.
YOU MUST COMPLETE THIS LETTER OF TRANSMITTAL IF YOU ARE A REGISTERED HOLDER OF OLD NOTES -- WHICH TERM, FOR PURPOSES OF THIS LETTER OF TRANSMITTAL, INCLUDES ANY PARTICIPANT IN THE DEPOSITORY TRUST COMPANY'S SYSTEM WHOSE NAME APPEARS ON A SECURITY POSITION LISTING AS THE OWNER OF THE OLD NOTES - AND EITHER (1) YOU WISH TO TENDER THE CERTIFICATES REPRESENTING YOUR OLD NOTES TO THE EXCHANGE AGENT TOGETHER WITH THIS LETTER OF TRANSMITTAL OR (2) YOU WISH TO TENDER YOUR OLD NOTES BY BOOK-ENTRY TRANSFER TO THE EXCHANGE AGENT'S ACCOUNT AT THE DEPOSITORY TRUST COMPANY AND YOU ELECT TO SUBMIT THIS LETTER OF TRANSMITTAL TO THE EXCHANGE AGENT INSTEAD OF AN AGENT'S MESSAGE.
In order to properly complete this Letter of Transmittal, you must: (1) complete the box entitled "Description of Old Notes Tendered," (2) if appropriate, check and complete the boxes relating to book-entry transfer and guaranteed delivery and the boxes entitled "Special Issuance Instructions" and "Special Delivery Instructions," (3) sign this Letter of Transmittal by completing the box entitled "Sign Here" and (4) complete the box entitled "Substitute Form W-9." By completing the box entitled "Description of Old Notes Tendered" and signing below, you will have tendered your Old Notes for exchange on the terms and conditions described in the Prospectus and this Letter of Transmittal. You should read the detailed instructions below before completing this Letter of Transmittal.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
BOX BELOW TO BE COMPLETED BY ALL TENDERING HOLDERS OF OLD NOTES
DESCRIPTION OF OLD 10-YEAR NOTES TENDERED (CUSIP NO. 032479AA5)
----------------------------------------------------------------------------------------------------------------------
NAME AND ADDRESS OF REGISTERED HOLDER 1 2 3
------------------------------------------------------- -------------------- --------------------- -------------------
AGGREGATE PRINCIPAL
CERTIFICATE AMOUNT OF 10-YEAR PRINCIPAL AMOUNT
NUMBER(S)* OLD NOTE(S) TENDERED**
-------------------- --------------------- -------------------
-------------------- --------------------- -------------------
-------------------- --------------------- -------------------
-------------------- --------------------- -------------------
-------------------- --------------------- -------------------
-------------------- --------------------- -------------------
TOTAL:
-------------------- --------------------- -------------------
|
* Need not be completed by holders who tender by book-entry transfer.
** 10-Year Old Notes tendered by this Letter of Transmittal must be in denominations of $1,000 principal amount and any integral multiple thereof. Unless otherwise indicated in column 3, a holder will be deemed to have tendered ALL of the 10-Year Old Notes represented by the certificate(s) listed in column 1. (See Instruction 4.)
----------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD 30-YEAR NOTES TENDERED (CUSIP NO. 032479AB3)
------------------------------------------------------- -------------------- --------------------- -------------------
NAME AND ADDRESS OF REGISTERED HOLDER 1 2 3
------------------------------------------------------- -------------------- --------------------- -------------------
AGGREGATE PRINCIPAL
CERTIFICATE AMOUNT OF 30-YEAR PRINCIPAL AMOUNT
NUMBER(S)* OLD NOTE(S) TENDERED**
-------------------- --------------------- -------------------
-------------------- --------------------- -------------------
-------------------- --------------------- -------------------
-------------------- --------------------- -------------------
-------------------- --------------------- -------------------
-------------------- --------------------- -------------------
TOTAL:
-------------------- --------------------- -------------------
|
* Need not be completed by holders who tender by book-entry transfer.
** 30-Year Old Notes tendered by this Letter of Transmittal must be in denominations of $1,000 principal amount and any integral multiple thereof. Unless otherwise indicated in column 3, a holder will be deemed to have tendered ALL of the 30-Year Old Notes represented by the certificate(s) listed in column 1. (See Instruction 4.)
BOXES BELOW TO BE CHECKED AS APPLICABLE
[ ] CHECK HERE IF THE CERTIFICATE(S) REPRESENTING YOUR OLD NOTES IS BEING TENDERED WITH THIS LETTER OF TRANSMITTAL.
[ ] CHECK HERE IF THE CERTIFICATE(S) REPRESENTING YOUR OLD NOTES HAS BEEN LOST, DESTROYED OR STOLEN AND YOU REQUIRE ASSISTANCE IN OBTAINING A NEW CERTIFICATE(S).
You must contact the Exchange Agent to obtain instructions for replacing lost, destroyed or stolen certificate(s) representing Old Notes. (See Instruction 12.)
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if New Notes or Old Notes not tendered or exchanged are to be issued in the name of someone other than the registered holder of the Old Notes whose name(s) appear below.
[ ] Old Note(s) to:
[ ] New Note(s) to:
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if New Notes or Old Notes or Old Notes not tendered or exchanged are to be delivered to someone other than the registered holder of the Old Notes whose name(s) appear(s) below or to the registered holder at an address other than that shown below.
[ ] Old Note(s) to:
[ ] New Note(s) to:
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY
IF TENDERED OLD NOTES ARE BEING DELIVERED UNDER A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING:
If delivered by Book-Entry Transfer, complete the following:
BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER TO THE EXCHANGE AGENT'S ACCOUNT AT THE DEPOSITORY TRUST
COMPANY AND COMPLETE THE FOLLOWING:
[ ] CHECK HERE IF OLD NOTES THAT ARE NOT TENDERED OR NOT EXCHANGED ARE TO
BE RETURNED BY CREDITING THE DEPOSITORY TRUST COMPANY ACCOUNT NUMBER
INDICATED ABOVE.
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, as described in the Prospectus and this Letter of Transmittal, I hereby tender to Anadarko Finance Company the aggregate principal amount of Old Notes described above in the box entitled "Description of Old Notes Tendered" in exchange for a like principal amount of New Notes with the same maturity date which have been registered under the Securities Act.
Subject to and effective upon the acceptance for exchange of all or any portion of the Old Notes tendered by this Letter of Transmittal in accordance with the terms and conditions of the Exchange Offer--including, if the Exchange Offer is extended or amended, the terms and conditions of any extension or amendment--I hereby sell, assign and transfer to, or upon the order of, Anadarko Finance Company all right, title and interest in and to the Old Notes tendered by this Letter of Transmittal. I hereby irrevocably constitute and appoint the Exchange Agent as my agent and attorney-in-fact--with full knowledge that the Exchange Agent is also acting as the agent of Anadarko Finance Company in connection with the Exchange Offer--with respect to the tendered Old Notes, with full power of substitution, such power of attorney being deemed to be an irrevocable power coupled with an interest, subject only to the right of withdrawal described in the Prospectus, to (1) deliver certificates for the tendered Old Notes to Anadarko Finance Company together with all accompanying evidences of transfer and authenticity to, or upon the order of, Anadarko Finance Company, upon receipt by the Exchange Agent, as my agent, of the New Notes to be issued in exchange for the tendered Old Notes, (2) present certificates for the tendered Old Notes for transfer, and to transfer the tendered Old Notes on the books of Anadarko Finance Company, and (3) receive for the account of Anadarko Finance Company all benefits and otherwise exercise all rights of ownership of the tendered Old Notes, all in accordance with the terms and conditions of the Exchange Offer.
I hereby represent and warrant that I have full power and authority to tender, sell, assign and transfer the Old Notes tendered by this Letter of Transmittal and that, when the tendered Old Notes are accepted for exchange, Anadarko Finance Company will acquire good, marketable and unencumbered title to the tendered Old Notes, free and clear of all liens, restrictions, charges and encumbrances, and that the tendered Old Notes are not subject to any adverse claims or proxies. I will, upon request, execute and deliver any additional documents deemed by Anadarko Finance Company or the Exchange Agent to be necessary or desirable to complete the exchange, sale, assignment and transfer of the Old Notes tendered by this Letter of Transmittal, and I will comply with my obligations, if any, under the Registration Rights Agreement, dated as of April 26, 2001 and the Registration Rights Agreement, dated as of May 23, 2001 (collectively, the "Registration Rights Agreements"), among Anadarko Finance Company, Anadarko Petroleum Corporation and Credit Suisse First Boston Corporation. I have read and I agree to all of the terms of the Exchange Offer.
The name(s) and address(es) of the registered holder(s) --which term, for purposes of this Letter of Transmittal, includes any participant in The Depository Trust Company's system whose name appears on a security position listing as the holder of the Old Notes--of the Old Notes tendered by this Letter of Transmittal are printed above as they appear on the certificate(s) representing the Old Notes. The certificate number(s) and the Old Notes that I wish to tender are indicated in the appropriate boxes above.
Unless I have otherwise indicated by completing the box entitled "Special Issuance Instructions" above, I hereby direct that the New Notes be issued in the name(s) of the undersigned or, in the case of a book-entry transfer of Old Notes, that the New Notes be credited to the account indicated above maintained with The Depository Trust Company. Similarly, unless I have otherwise indicated by completing the box entitled "Special Delivery Instructions," I hereby direct that the New Notes be delivered to the address shown below my signature.
If I have (1) tendered any Old Notes that are not exchanged in the Exchange Offer for any reason or (2) submitted certificates for more Old Notes than I wish to tender, unless I have otherwise indicated by completing the boxes entitled "Special Issuance Instructions" or "Special Delivery Instructions," I hereby direct that certificates for any Old Notes that are not tendered or not exchanged should be issued in the name of the undersigned, if applicable, and delivered to the address shown below my signature or, in the case of a book- entry transfer of Old Notes, that Old Notes that are not tendered or not exchanged be credited to the account indicated above maintained with The Depository Trust Company, in each case, at Anadarko Finance Company's expense, promptly following the expiration or termination of the Exchange Offer.
I understand that if I decide to tender Old Notes, and Anadarko Finance Company accepts the Old Notes for exchange, this will constitute a binding agreement between me and Anadarko Finance Company, subject to the terms and conditions set forth in the Prospectus and this Letter of Transmittal.
I also recognize that, under certain circumstances described in the Prospectus under the caption "The Exchange Offer--Conditions to the Exchange Offer," Anadarko Finance Company may not be required to accept for exchange any of the Old Notes tendered by this Letter of Transmittal.
By tendering Old Notes and executing this Letter of Transmittal, or delivering an Agent's Message instead of this Letter of Transmittal, I hereby represent and agree that: (1) I am not an "affiliate" (as defined in Rule 405 under the Securities Act) of Anadarko Finance Company; (2) any New Notes I receive in the Exchange Offer are being acquired by me in the ordinary course of my business; (3) at the time of the commencement of the Exchange Offer, neither I nor, to my knowledge, anyone receiving New Notes from me, has any arrangement or understanding with any person to participate in the distribution (as defined in the Securities Act) of the New Notes in violation of the Securities Act; (4) if I am not a Participating Broker-Dealer (as defined below), that I am not engaged in, and do not intend to engage in, the distribution of the New Notes; and (5) if I am a Participating Broker-Dealer, that I will receive the New Notes for my own account in exchange for Old Notes that I acquired as a result of my market-making or other trading activities and that I will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of the New Notes I receive. As used in this Letter of Transmittal, a "Participating Broker-Dealer" is a broker-dealer that receives New Notes for its own account in exchange for Old Notes that it acquired as a result of market-making or other trading activities. If I am a Participating Broker-Dealer, by making the representation set forth above and delivering a prospectus in connection with any resale transaction involving the New Notes, I understand that I will not be deemed to have admitted that I am an "underwriter" within the meaning of the Securities Act.
Anadarko Finance Company has agreed, subject to the terms of the Registration Rights Agreements, that for a period of not more than 180 days after the date of acceptance of Old Notes for exchange, it will make the Prospectus, as amended or supplemented from time to time, available to any Participating Broker-Dealer for use in connection with resales of the New Notes. Each Participating Broker-Dealer, by tendering Old Notes and executing this Letter of Transmittal, or delivering an Agent's Message instead of this Letter of Transmittal, agrees that, upon receipt of notice from Anadarko Finance Company of the occurrence of any event or the discovery of any fact which makes any statement contained or incorporated by reference in the Prospectus untrue in any material respect or which causes the Prospectus to omit to state a material fact necessary in order to make the statements contained or incorporated by reference in the Prospectus, in light of the circumstances under which they were made, not misleading, the Participating Broker-Dealer will suspend the sale of New Notes under the Prospectus. Each Participating Broker-Dealer further agrees that, upon receipt of a notice from Anadarko Finance Company to suspend the sale of New Notes as provided above, the Participating Broker-Dealer will suspend resales of the New Notes until (1) Anadarko Finance Company has amended or supplemented the Prospectus to correct the misstatement or omission and has furnished copies of the amended or supplemented Prospectus to the Participating Broker-Dealer or (2) Anadarko Finance Company has given notice that the sale of the New Notes may be resumed, as the case may be. If Anadarko Finance Company gives notice to suspend the sale of the New Notes as provided above, it will extend the period referred to above during which Participating Broker-Dealers are entitled to use the Prospectus in connection with the resale of New Notes by the number of days during the period from and including the date of the giving of such notice to and including the date when Participating Broker-Dealers receive copies of the supplemented or amended Prospectus necessary to permit resales of the New Notes or to and including the date on which Anadarko Finance Company has given notice that the sale of New Notes may be resumed, as the case may be.
As a result, a Participating Broker-Dealer who intends to use the Prospectus in connection with resales of New Notes received in exchange for Old Notes in the Exchange Offer must notify Anadarko Finance Company, on or prior to the expiration of the Exchange Offer, that it is a Participating Broker-Dealer. Participating Broker-Dealers must send the required written notice to Anadarko Finance Company's executive offices located at 17001 Northchase Drive, Houston, Texas 77060-2141, Attention: Vice President and Treasurer, and this notice must be received by Anadarko Finance Company at or prior to the expiration of the Exchange Offer.
Interest on the New Notes will accrue (1) from the later of (a) the last date to which interest was paid on the Old Notes surrendered in exchange for the New Notes or (b) if the Old Notes are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of the exchange and as to which interest will be paid, the date to which interest will be paid on such interest payment date or (2) if no interest has been paid on the Old Notes, from April 26, 2001.
All authority conferred in or agreed to be conferred in this Letter of Transmittal will survive my death or incapacity, and any obligation of mine under this Letter of Transmittal will be binding upon my heirs, executors, administrators, personal representatives, trustees in bankruptcy, legal representatives, successors and assigns. Except as stated in the Prospectus, this tender is irrevocable.
SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 BELOW)
(NOTE: SIGNATURE(S) MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2)
This Letter of Transmittal must be signed by (1) the registered holder(s)-which term, for purposes of this Letter of Transmittal, includes any participant in The Depository Trust Company's system whose name appears on a security position listing as the holder of the Old Notes-exactly as the name(s) of the registered holder(s) appear(s) on the certificate(s) for the Old Notes tendered or on the register of holders maintained by Anadarko Finance Company, or (2) by any person(s) authorized to become the registered holder(s) by endorsements and documents transmitted with this Letter of Transmittal-including any opinions of counsel, certifications and other information as may be required by Anadarko Finance Company for the Old Notes to comply with the restrictions on transfer applicable to the Old Notes. If the signature below is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or another acting in a similar fiduciary or representative capacity, please set forth the signer's full title. See Instruction 5.
Dated: , 2001
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Name(s)
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(PLEASE PRINT)
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Capacity
-----------------------------------------------------------------------
Address
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-------------------------------------------------------------------------------
(ZIP CODE)
Tax Identification or Social Security No.
--------------------------------------
(SEE INSTRUCTION 9)
Area Code and Telephone No.
----------------------------------------------------
SIGNATURE(S) GUARANTEED
(SEE INSTRUCTION 2, IF REQUIRED)
Eligible Guarantor Institution
------------------------------------------------
Official Signature
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Dated: , 2001
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TO BE COMPLETED BY ALL TENDERING HOLDERS OF SECURITIES
PAYOR'S NAME: THE BANK OF NEW YORK
SUBSTITUTE PART 1--PLEASE PROVIDE YOUR TIN IN THE TIN
FORM W-9 BOX AT RIGHT AND CERTIFY BY SIGNING AND -------------------
DATING BELOW (Social Security Number
Department of or Employer
the Treasury Identification Number)
Internal
Revenue Service
Payor's Request for
Taxpayer Identification
Number ("TIN")
and Certification
PART 2--FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING (SEE INSTRUCTIONS)
PART 3--CERTIFICATION--UNDER PENALTIES OF PERJURY, I
CERTIFY THAT (1) The number shown on this form is my
correct TIN (or I am waiting for a number to be issued to
me), (2) I am not subject to backup withholding because:
(a) I am exempt from backup withholding, or (b) I have
not been notified by the Internal Revenue Service (the
"IRS") that I am subject to backup withholding as a
result of a failure to report all interest or dividends or
(c) the IRS has notified me that I am no longer subject
to backup withholding, and (3) I am a U.S. person
(including a U.S. resident alien).
SIGNATURE DATE
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You must cross out item (2) in Part 3 above if you have been notified by the IRS that you are currently subject to backup withholding because of underreporting interest or dividends on your tax return.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU WROTE "APPLIED FOR" IN
PART 1 OF THE SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and that I mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office (or I intend to mail or deliver an application in the near future). I understand that if I do not provide a taxpayer identification number to the payor within 60 days, the Payor is required to withhold 31 percent of all cash payments made to me thereafter until I provide a number.
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31 PERCENT OF ANY CASH PAYMENTS. PLEASE REVIEW THE
ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER
ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED DELIVERY PROCEDURES. You must complete this Letter of Transmittal if you are a holder of Old Notes--which term, for purposes of this Letter of Transmittal, includes any participant in The Depository Trust Company's system whose name appears on a security position listing as the holder of the Old Notes--and either (1) you wish to tender the certificates representing your Old Notes to the Exchange Agent together with this Letter of Transmittal or (2) you wish to tender your Old Notes by book-entry transfer to the Exchange Agent's account at The Depository Trust Company and you elect to submit this Letter of Transmittal to the Exchange Agent instead of an Agent's Message. In order to constitute a valid tender of your Old Notes, unless you comply with the procedures for Guaranteed Delivery described below, the Exchange Agent must receive the following documents at one of the addresses listed above on or prior to the expiration of the Exchange Offer: (1) certificates for the Old Notes, in proper form for transfer, or Book-Entry Confirmation of transfer of the Old Notes into the Exchange Agent's account at The Depository Trust Company, (2) a properly completed and duly executed Letter of Transmittal, with any required signature guarantees, or, in the case of a Book-Entry Confirmation, an Agent's Message instead of this Letter of Transmittal, and (3) all other documents required by this Letter of Transmittal. Old Notes tendered in the Exchange Offer must be in denominations of $1,000 principal amount and any integral multiple thereof.
If you are a holder of the Old Notes and wish to tender your Old Notes,
but (1) the certificates for Old Notes are not immediately available, (2) time
will not permit your certificates for Old Notes or other required documents to
reach the Exchange Agent before the expiration of the Exchange Offer, or (3) the
procedure for book-entry transfer cannot be completed prior to the expiration of
the Exchange Offer, you may effect a tender if: (1) the tender is made through
an Eligible Guarantor Institution (as defined below); (2) prior to the
expiration of the Exchange Offer, the Exchange Agent receives from an Eligible
Guarantor Institution a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form we have provided, setting forth
your name and address and the amount of Old Notes you are tendering and stating
that the tender is being made by Notice of Guaranteed Delivery; and (3) the
Exchange Agent receives within three New York Stock Exchange, Inc. ("NYSE")
trading days after the date of execution of the Notice of Guaranteed Delivery:
(a) the certificates for all physically tendered Old Notes, in proper form for
transfer, or a Book-Entry Confirmation of transfer of the Old Notes into the
Exchange Agent's account at The Depository Trust Company, as the case may be,
(b) a properly completed and duly executed Letter of Transmittal, with any
required signature guarantees, or, in the case of a Book-Entry Confirmation, an
Agent's Message instead of the Letter of Transmittal, and (c) all other
documents required by the Letter of Transmittal. The Notice of Guaranteed
Delivery may be sent by overnight courier, hand delivery, registered or
certified mail or facsimile transmission and must include a guarantee by an
Eligible Guarantor Institution in the form set forth in the Notice.
THE METHOD OF DELIVERY OF CERTIFICATES FOR OLD NOTES, LETTERS OF TRANSMITTAL, AGENT'S MESSAGES AND ALL OTHER REQUIRED DOCUMENTS IS AT YOUR ELECTION. IF YOU DELIVER YOUR OLD NOTES BY MAIL, WE RECOMMEND REGISTERED MAIL, PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED. IN ALL CASES, YOU SHOULD ALLOW SUFFICIENT TIME TO ASSURE TIMELY DELIVERY. DO NOT SEND CERTIFICATES FOR OLD NOTES, LETTERS OF TRANSMITTAL, AGENT'S MESSAGES OR OTHER REQUIRED DOCUMENTS TO ANADARKO FINANCE COMPANY.
Anadarko Finance Company will not accept any alternative, conditional or contingent tenders. Each tendering holder, by execution of this Letter of Transmittal or delivery of an Agent's Message instead of the Letter of Transmittal, waives any right to receive any notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of Transmittal is required if:
(a) this Letter of Transmittal is signed by the registered holder--which term, for purposes of this Letter of Transmittal, includes any participant in The Depository Trust Company's system whose name appears on a security position listing as the owner of the Old Notes--of Old Notes tendered with this Letter of Transmittal, unless such holder(s) has completed either the box entitled "Special Issuance Instructions" or the box entitled "Special Delivery Instructions" above, or
(b) the Old Notes are tendered for the account of a firm that is an Eligible Guarantor Institution.
In all other cases, an Eligible Guarantor Institution must guarantee the signature(s) on this Letter of Transmittal. See Instruction 5.
An "Eligible Guarantor Institution" (as defined in Rule 17Ad-15 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) means:
o Banks (as defined in Section 3(a) of the Federal Deposit Insurance Act);
o Brokers, dealers, municipal securities dealers, municipal securities brokers, government securities dealers and government securities brokers (as defined in the Exchange Act);
o Credit unions (as defined in Section 19B(1)(A) of the Federal Reserve Act);
o National securities exchanges, registered securities associations and clearing agencies (as these terms are defined in the Exchange Act); and
o Savings associations (as defined in Section 3(b) of the Federal Deposit Insurance Act).
3. INADEQUATE SPACE. If the space provided in the box captioned "Description of Old Notes Tendered" is inadequate, the certificate number(s) and/or the principal amount of Old Notes and any other required information should be listed on a separate signed schedule which is attached to this Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old Notes will be accepted only in denominations of $1,000 principal amount and integral multiples thereof. If you are tendering less than all of the Old Notes evidenced by any certificate you are submitting, please fill in the principal amount of Old Notes which are to be tendered in column 3 ("Principal Amount of Old Notes Tendered") of the box entitled "Description of Old Notes Tendered." In that case, unless you have otherwise indicated by completing the boxes entitled "Special Issuance Instructions" or "Special Delivery Instructions", new certificate(s) for the remainder of the Old Notes that were evidenced by your old certificate(s) will be sent to the registered holder of the Old Notes, promptly after the expiration of the Exchange Offer. All Old Notes represented by certificates delivered to the Exchange Agent will be deemed to have been tendered unless otherwise indicated.
Except as otherwise provided in this Letter of Transmittal, tenders of Old Notes may be withdrawn at any time on or prior to the expiration of the Exchange Offer. For a withdrawal to be effective, a written notice of withdrawal must be received by the Exchange Agent prior to the expiration of the Exchange Offer at one of the addresses listed above. Any notice of withdrawal must specify the name of the person who tendered the Old Notes to be withdrawn, identify the Old Notes to be withdrawn, including the principal amount of the Old Notes, and, where certificates for Old Notes have been transmitted, specify the name in which the Old Notes are registered, if different from that of the withdrawing holder. If certificates for Old Notes have been delivered or otherwise identified to the Exchange Agent, then, prior to the release of the certificates, the withdrawing holder must also submit the serial numbers of the particular certificates to be withdrawn and a signed notice of withdrawal with signatures guaranteed by an Eligible Guarantor Institution unless the holder is an Eligible Guarantor Institution. If Old Notes have been tendered using the procedure for book-entry transfer described in the Prospectus under the caption "The Exchange Offer--Book-Entry Transfer," any notice of withdrawal must specify the name and number of the account at The Depository Trust Company to be credited with the withdrawn Old Notes and otherwise comply with the procedures of the book-entry transfer facility. All questions as to the validity, form and eligibility--including time of receipt--of these notices will be determined by Anadarko Finance Company. Any such determination will be final and binding. Any Old Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the Exchange Offer. Any Old Notes which have been tendered for exchange but which are not exchanged for any reason will be returned to the registered holder without cost to that holder as soon as practicable after withdrawal, non-acceptance of tender or termination of the Exchange Offer. In the case of Old Notes tendered using the procedure for book-entry transfer described in the Prospectus under the caption "The Exchange Offer--Book-Entry Transfer," the Old Notes will be credited to the tendering holder's account with The Depository Trust Company. Properly withdrawn Old Notes may be retendered at any time on or prior to the
expiration of the Exchange Offer by following one of the procedures described in the Prospectus under the caption "The Exchange Offer--Procedures for Tendering Old Notes."
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS. If this Letter of Transmittal is signed by the registered holder(s) of the Old Notes tendered hereby, the signature(s) must correspond exactly with the name(s) as written on the face of the certificate(s) without alteration, enlargement or any change whatsoever.
If any of the Old Notes tendered hereby are registered in the name of two or more joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Old Notes are registered in different name(s) on several certificates, it will be necessary to complete, sign and submit as many separate Letters of Transmittal as there are different registered holders.
When this Letter of Transmittal is signed by the registered holder(s) of the Old Notes listed and transmitted by this Letter of Transmittal, no endorsement(s) of certificate(s) or separate bond power(s) are required unless New Notes are to be issued in the name of a person other than the registered holder(s). Signature(s) on the certificate(s) or bond power(s) must be guaranteed by an Eligible Guarantor Institution.
If a person or persons other than the registered holder(s) of Old Notes signs the Letter of Transmittal, certificates for the Old Notes must be endorsed or accompanied by appropriate bond powers, signed exactly as the name or names of the registered holder(s) that appears on the certificates for the Old Notes and also must be accompanied by any opinions of counsel, certifications and other information as Anadarko Finance Company may require in accordance with the restrictions on transfer applicable to the Old Notes. Signatures on certificates or bond powers must be guaranteed by an Eligible Guarantor Institution.
If you are a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation, or act in a similar fiduciary or representative capacity, and wish to sign this Letter of Transmittal or any certificates for Old Notes or bond powers, you must indicate your status when signing. If you are acting in any of these capacities, you must submit proper evidence satisfactory to us of your authority to so act unless we waive this requirement.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If New Notes are to be issued in the name of a person other than the signer of this Letter of Transmittal, or if New Notes are to be delivered to someone other than the signer of this Letter of Transmittal or to an address other than that shown above, the appropriate boxes on this Letter of Transmittal should be completed. Certificates for Old Notes not exchanged will be returned by mail or, if tendered by book-entry transfer, by crediting the account indicated above maintained with The Depository Trust Company. See Instruction 4.
7. IRREGULARITIES. All questions as to the validity, form, eligibility--including time of receipt--and acceptance of Old Notes tendered for exchange will be determined by Anadarko Finance Company in its sole discretion. Our determination will be final and binding. We reserve the absolute right to reject any and all tenders of Old Notes improperly tendered or to not accept any Old Notes, the acceptance of which might be unlawful as determined by us or our counsel. We also reserve the absolute right to waive any defects or irregularities or conditions of the Exchange Offer as to any Old Notes either before or after the expiration of the Exchange Offer--including the right to waive the ineligibility of any holder who seeks to tender Old Notes in the Exchange Offer. Our interpretation of the terms and conditions of the Exchange Offer as to any particular Old Notes either before or after the expiration of the Exchange Offer--including the terms and conditions of the Letter of Transmittal and the accompanying instructions--will be final and binding. Unless waived, any defects or irregularities in connection with tenders of Old Notes for exchange must be cured within a reasonable period of time, as determined by us. Neither we, the Exchange Agent nor any other person has any duty to give notification of any defect or irregularity with respect to any tender of Old Notes for exchange, nor will we have any liability for failure to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions and requests for assistance may be directed to the Exchange Agent at the addresses and telephone number listed on the front of this Letter of Transmittal. Additional copies of the Prospectus, this Letter of Transmittal or the Notice of Guaranteed Delivery may be obtained from the Exchange Agent or from your broker, dealer, commercial bank, trust company or other nominee.
9. TAXPAYER IDENTIFICATION NUMBER AND BACKUP WITHHOLDING. Federal income tax law generally requires that a tendering holder whose Old Notes are accepted for exchange must provide the Exchange Agent (as payor) with such holder's correct Taxpayer Identification Number (a "TIN"), which, in the case of a holder who is an individual, is such holder's social security number. If the Exchange Agent is not provided with the correct TIN or an adequate basis for an exemption, such holder may be subject to a $50 penalty imposed by the Internal Revenue Service and backup withholding in an amount equal to 31% of the amount of any reportable payments made after the exchange to such tendering holder. If withholding results in an overpayment of taxes, a refund may be obtained.
To prevent backup withholding, each tendering holder must provide such holder's correct TIN by completing the "Substitute Form W-9" set forth herein, certifying that the TIN provided is correct (or that such Holder is awaiting a TIN) and that (i) the holder is exempt from backup withholding, (ii) the holder has not been notified by the Internal Revenue Service that such holder is subject to backup withholding as a result of a failure to report all interest or dividends or (iii) the Internal Revenue Service has notified the holder that such holder is no longer subject to backup withholding and that the holder is a U.S. person (including a U.S. resident alien).
Exempt holders (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. To prevent possible erroneous backup withholding, an exempt Holder should write "Exempt" in Part 2 of Substitute Form W-9. See the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (the "W-9 Guidelines") for additional instructions. In order for a nonresident alien or foreign entity to qualify as exempt, such person must submit a completed applicable Form W-8, signed under penalty of perjury attesting to such exempt status. Such form may be obtained from the Exchange Agent.
If the Old Notes are held in more than one name or are not in the name
of the actual owner, consult the W-9 Guidelines for information on which TIN to
report.
If the holder does not have a TIN, such holder should consult the W-9
Guidelines for instructions on applying for a TIN, write "Applied For" in the
space for the TIN in Part 1 of the Substitute Form W-9, and sign and date the
Substitute Form W-9 and the Certificate of Awaiting Taxpayer Identification
Number set forth herein. If the holder does not provide such holder's TIN to the
Exchange Agent within 60 days, backup withholding will begin and continue until
such holder furnishes such holder's TIN to the Exchange Agent. NOTE: WRITING
"APPLIED FOR" ON THE FORM MEANS THAT THE HOLDER HAS ALREADY APPLIED FOR A TIN OR
THAT SUCH HOLDER INTENDS TO APPLY FOR ONE IN THE NEAR FUTURE.
10. WAIVER OF CONDITIONS. Anadarko Finance Company's obligation to complete the Exchange Offer is subject to the conditions described in the Prospectus under the caption "The Exchange Offer--Conditions to the Exchange Offer." These conditions are for our benefit only and we may assert them regardless of the circumstances giving rise to any condition. We may also waive any condition in whole or in part at any time in our sole discretion. Our failure at any time to exercise any of the foregoing rights will not constitute a waiver of that right and each right is an ongoing right that we may assert at any time.
11. NO CONDITIONAL TENDERS. No alternative, conditional or contingent tenders will be accepted. All tendering holders of Old Notes, by execution of this Letter of Transmittal, waive any right to receive notice of the acceptance of Old Notes for exchange.
12. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate(s) representing Old Notes have been lost, destroyed or stolen, the holder should check the box above regarding lost, destroyed or stolen certificates and promptly notify the Exchange Agent. The holder will then be instructed as to the steps that must be taken in order to replace the certificate(s). This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost, destroyed or stolen certificate(s) have been followed.
13. TRANSFER TAXES. Anadarko Finance Company will pay all transfer taxes, if any, applicable to the transfer of Old Notes to it or its order pursuant to the Exchange Offer. If, however, New Notes and/or substitute Old Notes not exchanged are to be delivered to, or are to be registered or issued in the name of, any person other than the registered holder of the Old Notes tendered hereby, or if tendered Old Notes are registered in the name of any person other than the person signing this Letter, or if a transfer tax is imposed for any reason other than the transfer of Old Notes to Anadarko Finance Company or its order pursuant to the Exchange Offer, the
amount of any such transfer taxes (whether imposed on the registered holder or any other persons) will be payable by the tendering holder. If satisfactory evidence of payment of such taxes or exemption therefrom is not submitted herewith, the amount of such transfer taxes will be billed directly to such tendering holder. EXCEPT AS PROVIDED IN THIS INSTRUCTION 13, IT WILL NOT BE NECESSARY FOR TRANSFER TAX STAMPS TO BE AFFIXED TO THE OLD NOTES SPECIFIED IN THIS LETTER OF TRANSMITTAL.
IMPORTANT: UNLESS YOU COMPLY WITH THE GUARANTEED DELIVERY PROCEDURES DESCRIBED ABOVE, THIS LETTER OF TRANSMITTAL (OR A FACSIMILE OF THIS LETTER OF TRANSMITTAL), OR, IN THE CASE OF OLD NOTES TENDERED BY BOOK-ENTRY TRANSFER TO THE EXCHANGE AGENT'S ACCOUNT AT THE DEPOSITORY TRUST COMPANY, AN AGENT'S MESSAGE INSTEAD OF THIS LETTER OF TRANSMITTAL, AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION OF THE EXCHANGE OFFER.
EXHIBIT 99(b)
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER.--Social Security numbers have nine digits separated by two hyphens: i.e. 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e. 00-0000000. The table will help determine the number to give the payer.
GIVE THE GIVE THE EMPLOYER
SOCIAL SECURITY IDENTIFICATION
FOR THIS TYPE OF ACCOUNT: NUMBER OF-- FOR THIS TYPE OF ACCOUNT: NUMBER OF--
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1. An individual's account The individual 8. Sole proprietorship account The owner(4)
2. Two or more individuals The actual owner of the 9. A valid trust, estate, or Legal entity (Do not
(joint account) account or, if combined pension trust furnish the identifying
funds, any one of the number of the personal
individuals(1) representative or
trustee unless the
legal entity itself is
not designated in the
account title.)(5)
3. Husband and wife (joint The actual owner of the 10. Corporate account The corporation
account) account or, if joint
funds, either person(1)
4. Custodian account of a minor The minor(2) 11. Religious, charitable, or The organization
(Uniform Gift to Minors Act) educational organization account
5. Adult and minor (joint The adult or, if the 12. Partnership account The partnership
account) minor is the only
contributor, the minor(1)
6. Account in the name of The ward, minor, or 13. Association, club, or other The organization
guardian or committee for a incompetent person(3) tax-exempt organization
designated ward, minor, or
incompetent person
7. a. The usual revocable The grantor-trustee(1) 14. A broker or registered nominee The broker or nominee
savings trust account
(grantor is also trustee)
b. So-called trust account The actual owner(1) 15. Account with the Department of The public entity
that is not a legal or Agriculture in the name of a
valid trust under State law public entity (such as a State
or local government, school
district, or prison) that
receives agricultural program
payments
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(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such person's social security number.
(4) Show the owner's name and furnish the owner's social security number or the employer identification number of the business.
(5) List first and circle the name of the legal trust, estate, or pension trust.
NOTE: If no name is circled with there is more than one name, the number will be considered to be that of the first name listed.
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL interest and
dividend payments include the following:
o A corporation.
o A financial institution.
o An organization exempt from tax under section 501(a), or an individual
retirement plan.
o The United States or any agency or instrumentality thereof.
o A State, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
o A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
o An international organization or any agency, or instrumentality thereof.
o A registered dealer in securities or commodities registered in the U.S. or a
possession of the U.S.
o A real estate investment trust.
o A common trust fund operated by a bank under section 584(a).
o An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1).
o An entity registered at all times under the Investment Company Act of 1940.
o A foreign central bank of issue.
o A middleman known in the investment community as a nominee or custodian.
Payments of dividends and patronage dividends not generally subject to backup withholding include the following:
o Payments to nonresident aliens subject to withholding under section 1441.
o Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident partner.
o Payments of patronage dividends where the amount received is not paid in
money.
o Payments made by certain foreign organizations.
Payments of interest not generally subject to backup withholding include the following:
o Payments of interest on obligations issued by individuals. Note: You may be
subject to backup withholding if this interest is $600 or more and is paid
in the course of the payer's trade or business and you have not provided
your correct taxpayer identification number to the payer.
o Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
o Payments described in section 6049(b)(5) to non-resident aliens.
o Payments on tax-free covenant bonds under section 1451.
o Payments made by certain foreign organizations.
Exempt payees described above should file Form W-9 to avoid possible erroneous backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT TO THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends, that are not subject to information reporting are also not subject to backup withholding. For details, see the regulations under sections 6041, 6041A, 6042, 6044, 6045, 6049, 6050A and 6050N.
PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividends, interest, or other payments to give taxpayer identification numbers to payers who must report the payments to IRS. IRS uses the numbers for identification purposes. Payers must be given the numbers whether or not recipients are required to file tax returns. Payers must generally withhold 31% of taxable interest, dividend, and certain other payments to a payee who does not furnish a taxpayer identification number to a payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you make a false statement with no reasonable basis which results in no imposition of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE
EXHIBIT 99(c)
ANADARKO FINANCE COMPANY
NOTICE OF GUARANTEED DELIVERY
This form or one substantially equivalent to this form must be used to
accept the offer (the "Exchange Offer") of Anadarko Finance Company to exchange
(i) an aggregate principal amount of up to $950,000,000 of its 6 3/4% Series B
Senior Notes due 2011 (the "10-Year New Notes"), the issuance of which has been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
for a like principal amount of its issued and outstanding 6 3/4% Series A Senior
Notes due 2011 (the "10-Year Old Notes"), which were issued in offerings under
Rule 144A and Regulation S of the Securities Act that were not registered under
the Securities Act and (ii) an aggregate principal amount of up to $900,000,000
7 1/2% Series B Senior Notes due 2031 (the "30-Year New Notes" and together with
the 10-Year New Notes, the "New Notes"), the issuance of which has been
registered under the Securities Act, for a like principal amount of its issued
and outstanding 7 1/2% Series A Senior Notes due 2031 (the "30-Year Old Notes"
and together with the 10-Year Old Notes, the "Old Notes"), which were issued in
offerings under Rule 144A and Regulation S of the Securities Act that were not
registered under the Securities Act. The Exchange Offer will expire at 5:00
p.m., New York City time, on ____________, 2001, unless extended (as it may be
extended, the "Expiration Date"). As described in the enclosed Prospectus, dated
_____________, 2001 (the "Prospectus"), if you are a registered holder of Old
Notes and wish to tender your Old Notes, but (1) the certificates for Old Notes
are not immediately available, (2) time will not permit your certificates for
Old Notes or other required documents to reach The Bank of New York, as exchange
agent (the "Exchange Agent"), before the Expiration Date or (3) the procedure
for book-entry transfer cannot be completed before the Expiration Date, you may
effect a tender of your Old Notes if (1) the tender is made through an Eligible
Guarantor Institution (as defined in the Prospectus under the caption "The
Exchange Offer?Procedures for Tendering Old Notes"); (2) prior to the Expiration
Date, the Exchange Agent receives from an Eligible Guarantor Institution a
properly completed and duly executed Notice of Guaranteed Delivery,
substantially in this form, setting forth your name and address, and the amount
of Old Notes you are tendering and stating that the tender is being made by
Notice of Guaranteed Delivery. These documents may be sent by overnight courier,
registered or certified mail or facsimile transmission. If you elect to use this
procedure, you must also guarantee that within three New York Stock Exchange,
Inc., ("NYSE") trading days after the date of execution of the Notice of
Guaranteed Delivery, the certificates for all physically tendered Old Notes, in
proper form for transfer, or a Book-Entry Confirmation (as defined in the
Prospectus under the caption "The Exchange Offer?Procedures for Tendering Old
Notes") of transfer of the Old Notes into the Exchange Agent's account at The
Depository Trust Company (including the Agent's Message (as defined in the
Prospectus under the caption "The Exchange Offer?Procedures for Tendering Old
Notes") that forms a part of the Book-Entry Confirmation), as the case may be, a
properly completed and duly executed Letter of Transmittal, with any required
signature guarantees, and all other documents required by the Letter of
Transmittal, will be deposited by the Eligible Guarantor Institution with the
Exchange Agent; and (3) the Exchange Agent receives the certificates for all
physically tendered Old Notes, in proper form for transfer, or a Book-Entry
Confirmation of transfer of the Old Notes into the Exchange Agent's account at
The Depository Trust Company, as the case may be, a properly completed and duly
executed Letter of Transmittal, with any required signature guarantees, and all
other required documents or, in the case of a Book-Entry Confirmation, a
properly completed and duly executed Letter of Transmittal, with any required
signature guarantees, or an Agent's Message instead of the Letter of
Transmittal, in each case, within three NYSE trading days after the date of
execution of this Notice of Guaranteed Delivery.
Delivery to: THE BANK OF NEW YORK, Exchange Agent
By Regular or Certified Mail: By Facsimile By Overnight Courier or Hand:
(Eligible Guarantor Institutions Only)
The Bank of New York The Bank of New York The Bank of New York
101 Barclay Street, 21 West 101 Barclay Street, 21 West 101 Barclay Street, 21 West
New York, NY 10286 New York, NY 10286 New York, NY 10286
Attention: Corporate Trust Attention: Corporate Trust Attention: Corporate Trust
Administration Administration Administration
Fax: (212) 815-5915
To Confirm by Telephone
or for Information Call:
The Bank of New York
101 Barclay Street, 21 West
New York, NY 10286
Attention: Corporate Trust
Administration
Phone: (212) 815-3750
|
DELIVERY OF A LETTER OF TRANSMITTAL OR AGENT'S MESSAGE TO AN ADDRESS OTHER THAN THE ADDRESS LISTED ABOVE OR TRANSMISSION OF INSTRUCTIONS BY FACSIMILE OTHER THAN AS SET FORTH ABOVE IS NOT VALID DELIVERY OF THE LETTER OF TRANSMITTAL OR AGENT'S MESSAGE.
Ladies and Gentlemen:
Subject to the terms and conditions set forth in the Prospectus and the accompanying Letter of Transmittal, the undersigned hereby tenders to Anadarko Finance Company the principal amount of Old Notes set forth below pursuant to the guaranteed delivery procedure described in the Prospectus under the caption "The Exchange Offer -- Guaranteed Delivery Procedures."
CERTIFICATE NOS. (IF KNOWN) OF
OLD NOTES OR ACCOUNT NO. AT
THE DEPOSITORY TRUST AGGREGATE PRINCIPAL AGGREGATE PRINCIPAL
TITLE OF SERIES* COMPANY AMOUNT REPRESENTED AMOUNT TENDERED**
---------------- ------------------------------ ------------------ -------------------
|
ALL AUTHORITY HEREIN CONFERRED OR AGREED TO BE CONFERRED SHALL SURVIVE THE DEATH OR INCAPACITY OF THE UNDERSIGNED AND EVERY OBLIGATION OF THE UNDERSIGNED HEREUNDER SHALL BE BINDING UPON THE HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS AND ASSIGNS OF THE UNDERSIGNED.
PLEASE SIGN HERE
X
---------------------- ------------
X
---------------------- ------------
Signature(s) of Owner(s) Date
or Authorized Signatory
Area Code and Telephone Number: ( )
------------------------------
|
Must be signed by the holder(s) of Old Notes as their name(s) appear(s) on certificates for Old Notes or on a security position listing, or by person(s) authorized to become registered holder(s) by endorsement and documents transmitted with this Notice of Guaranteed Delivery. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, such person must set forth his or her full title below.
*Either "6 3/4% Notes due 2011" or "7 1/2% Notes due 2031."
**Must be in denominations of principal amount of $1,000 and any integral multiple thereof.
PLEASE PRINT NAME(S) AND ADDRESS(ES)
GUARANTEE
(Not to be used for signature guarantee)
The undersigned, an Eligible Guarantor Institution, hereby guarantees that the certificates representing the principal amount of Old Notes tendered hereby in proper form for transfer, or timely confirmation of the book-entry transfer of such Old Notes into the Exchange Agent's account at The Depository Trust Company pursuant to the procedures set forth in the Prospectus under the caption "The Exchange Offer -- Guaranteed Delivery Procedures," together with any required signature guarantee and any other documents required by the Letter of Transmittal, will be received by the Exchange Agent at the address set forth above, no later than three NYSE trading days after the Expiration Date.
------------------------------------ ---------------------------------
Name of Firm Authorized Signature
------------------------------------ ---------------------------------
Address Title
Name:
------------------------------------ ---------------------------------
Zip Code (Please Type or Print)
|
NOTE: DO NOT SEND CERTIFICATES FOR OLD NOTES WITH THIS FORM. CERTIFICATES FOR OLD NOTES SHOULD BE SENT ONLY WITH A COPY OF YOUR PREVIOUSLY EXECUTED LETTER OF TRANSMITTAL.
EXHIBIT 99(d)
ANADARKO FINANCE COMPANY
IS OFFERING TO EXCHANGE
ITS
6 3/4% SERIES B SENIOR NOTES DUE 2011 AND
7 1/2% SERIES B SENIOR NOTES DUE 2031,
PURSUANT TO ITS PROSPECTUS, DATED , 2001,
FOR ALL ISSUED AND OUTSTANDING
6 3/4% SERIES A SENIOR NOTES DUE 2011 AND
7 1/2% SERIES A SENIOR NOTES DUE 2031, RESPECTIVELY
To: Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
Anadarko Finance Company, an unlimited liability company organized under the laws of the province of Nova Scotia, Canada ("Anadarko Finance"), is offering, subject to the terms and conditions set forth in its prospectus, dated , 2001 (the "Prospectus"), relating to the offer (the "Exchange Offer") of Anadarko Finance to exchange (i) an aggregate principal amount of up to $950,000,000 of its 6 3/4% Series B Senior Notes due 2011 (the "10-Year New Notes"), the issuance of which has been registered under the Securities Act of 1933, as amended (the "Securities Act"), for a like principal amount of its issued and outstanding 6 3/4% Series A Senior Notes due 2011 (the "10-Year Old Notes") and (ii) an aggregate principal amount of up to $900,000,000 of its 7 1/2% Series B Senior Notes due 2031 (the "30-Year New Notes" and, together with the 10-Year New Notes, the "New Notes"), the issuance of which has been registered under the Securities Act, for a like principal amount of its issued and outstanding 7 1/2% Series A Senior Notes due 2031 (the "30-Year Old Notes" and, together with the 10-Year Old Notes, the "Old Notes"). The Old Notes were issued in offerings under Rule 144A and Regulation S of the Securities Act that were not registered under the Securities Act. The Exchange Offer is being extended to all holders of the Old Notes in order to satisfy certain obligations of Anadarko Finance contained in the Registration Rights Agreement, dated as of April 26, 2001, by and among Anadarko Finance, Anadarko Petroleum Corporation ("Anadarko") and Credit Suisse First Boston Corporation ("CSFB"), and the Registration Rights Agreement, dated as of May 23, 2001, by and among Anadarko Finance, Anadarko and CSFB. The 10-Year New Notes are substantially identical to the 10-Year Old Notes and the 30-Year New Notes are substantially identical to the 30-Year Old Notes, except that the transfer restrictions and registration rights applicable to the Old Notes do not apply to the New Notes.
Please contact your clients for whom you hold Old Notes regarding the Exchange Offer. For your information and for forwarding to your clients for whom you hold Old Notes registered in your name or in the name of your nominee, or who hold Old Notes registered in their own names, we are enclosing the following documents:
1. A Prospectus dated , 2001;
2. A Letter of Transmittal for your use and for the information of your clients;
3. A Notice of Guaranteed Delivery to be used to accept the Exchange Offer if: (a) certificates for the Old Notes are not immediately available, (b) time will not permit the certificates for the Old Notes or other required documents to reach the Exchange Agent before the expiration of the Exchange Offer or (c) the procedure for book-entry transfer cannot be completed prior to the expiration of the Exchange Offer;
4. A form of letter which may be sent to your clients for whose accounts you hold Old Notes registered in your name or in the name of your nominee, with space provided for obtaining such clients' instructions with regard to the Exchange Offer;
5. Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9; and
6. Return envelopes addressed to The Bank of New York, the Exchange Agent for the Exchange Offer.
YOUR PROMPT ACTION IS REQUESTED. THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME ON , 2001, UNLESS THE EXCHANGE OFFER IS EXTENDED (AS IT MAY BE EXTENDED, THE "EXPIRATION DATE"). OLD NOTES TENDERED PURSUANT TO THE EXCHANGE OFFER MAY BE WITHDRAWN AT ANY TIME BEFORE THE EXPIRATION DATE.
Unless a holder of Old Notes complies with the procedures described in the Prospectus under the caption "Guaranteed Delivery Procedures," the holder must do one of the following on or prior to the Expiration Date to participate in the Exchange Offer:
o tender the Old Notes by sending the certificates for the Old Notes, in proper form for transfer, a properly completed and duly executed Letter of Transmittal, with any required signature guarantees, and all other documents required by the Letter of Transmittal, to The Bank of New York, as Exchange Agent, at one of the addresses listed in the Prospectus under the caption "Exchange Agent"; or
o tender the Old Notes by using the book-entry procedures described in the Prospectus under the caption "Book Entry Transfer" and transmitting a properly completed and duly executed Letter of Transmittal, with any required signature guarantees, or an Agent's Message instead of the Letter of Transmittal, to the Exchange Agent.
In order for a book-entry transfer to constitute a valid tender of Old Notes in the Exchange Offer, the Exchange Agent must receive a confirmation of book-entry transfer (a "Book-Entry Confirmation") of the Old Notes into the exchange Agent's account at The Depository Trust Company prior to the Expiration Date. The term "Agent's Message" means a message, transmitted by The Depository Trust Company and received by the Exchange Agent and forming a part of the Book-Entry Confirmation, which states that The Depository Trust Company has received an express acknowledgment from the tendering holder of Old Notes that the holder has received and has agreed to be bound by the Letter of Transmittal.
If a registered holder of Old Notes wishes to tender the Old Notes in the Exchange Offer, but (a) the certificates for the Old Notes are not immediately available, (b) time will not permit the certificates for the Old Notes or other required documents to reach the Exchange Agent before the expiration of the Exchange Offer or (c) the procedure for book-entry transfer cannot be completed before the Expiration Date, a tender of Old Notes may be effected by following the Guaranteed Delivery Procedures described in the Prospectus under the caption "The Exchange Offer-Guaranteed Delivery Procedures."
Anadarko Finance will, upon request, reimburse brokers, dealers, commercial banks, trust companies and other nominees for reasonable and necessary costs and expenses incurred by them in forwarding the Prospectus and the related documents to the beneficial owners of Old Notes held by them as nominee or in a fiduciary capacity. Anadarko Finance will pay or cause to be paid all stock transfer taxes applicable to the exchange of Old Notes in the Exchange Offer, except as set forth in Instruction 13 of the Letter of Transmittal.
Any inquiries you may have with respect to the Exchange Offer, or requests for additional copies of the enclosed materials, should be directed to The Bank of New York, the Exchange Agent for the Exchange Offer, at its address and telephone number set forth on the front of the Letter of Transmittal.
Very truly yours,
ANADARKO FINANCE COMPANY
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY PERSON AS AN AGENT OF ANADARKO FINANCE OR THE EXCHANGE AGENT, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF EITHER OF THEM IN CONNECTION WITH THE EXCHANGE OFFER, EXCEPT FOR STATEMENTS EXPRESSLY MADE IN THE PROSPECTUS OR THE LETTER OF TRANSMITTAL.
Enclosures
EXHIBIT 99(e)
ANADARKO FINANCE COMPANY
IS OFFERING TO EXCHANGE
ITS
6 3/4% SERIES B SENIOR NOTES DUE 2011 AND
7 1/2% SERIES B SENIOR NOTES DUE 2031,
PURSUANT TO ITS PROSPECTUS, DATED , 2001,
FOR ALL ISSUED AND OUTSTANDING
6 3/4% SERIES A SENIOR NOTES DUE 2011 AND
7 1/2% SERIES A SENIOR NOTES DUE 2031, RESPECTIVELY
To Our Clients:
Enclosed for your consideration is a prospectus, dated , 2001 (the "Prospectus"), and the related Letter of Transmittal (the "Letter of Transmittal") relating to the offer (the "Exchange Offer") of Anadarko Finance Company ("Anadarko Finance") to exchange (i) an aggregate principal amount of up to $950,000,000 of its 6 3/4% Series B Senior Notes due 2011 (the "10-Year New Notes"), the issuance of which has been registered under the Securities Act of 1933, as amended (the "Securities Act"), for a like principal amount of its issued and outstanding 6 3/4% Series A Senior Notes due 2011 (the "10-Year Old Notes") and (ii) an aggregate principal amount of up to $900,000,000 of its 7 1/2% Series B Senior Notes due 2031 (the "30-Year New Notes" and, together with the 10-Year New Notes, the "New Notes"), the issuance of which has been registered under the Securities Act, for a like principal amount of its issued and outstanding 7 1/2% Series A Senior Notes due 2031 (the "30-Year Old Notes" and, together with the 10-Year Old Notes, the "Old Notes"). The Old Notes were issued in offerings under Rule 144A and Regulation S of the Securities Act that were not registered under the Securities Act. The Exchange Offer is being extended to all holders of the Old Notes in order to satisfy certain obligations of Anadarko Finance contained in the Registration Rights Agreement, dated as of April 26, 2001, by and among Anadarko Finance, Anadarko Petroleum Corporation ("Anadarko") and Credit Suisse First Boston Corporation ("CSFB"), and the Registration Rights Agreement, dated as of May 23, 2001, by and among Anadarko Finance, Anadarko and CSFB. The 10-Year New Notes are substantially identical to the 10-Year Old Notes and the 30-Year New Notes are substantially identical to the 30-Year Old Notes, except that the transfer restrictions and registration rights applicable to the Old Notes do not apply to the New Notes.
These materials are being forwarded to you as the beneficial owner of the Old Notes held by us for your account but not registered in your name. A TENDER OF SUCH OLD NOTES MAY ONLY BE MADE BY US AS THE HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS.
Accordingly, we request instructions as to whether you wish us to tender on your behalf the Old Notes held by us for your account, pursuant to the terms and conditions set forth in the enclosed Prospectus and Letter of Transmittal.
Your instructions should be forwarded to us as promptly as possible in order to permit us to tender the Old Notes on your behalf in accordance with the provisions of the Exchange Offer. THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2001, UNLESS THE EXCHANGE OFFER IS EXTENDED. Any Old Notes tendered pursuant to the Exchange Offer may with withdrawn at any time before the expiration of the Exchange Offer.
Your attention is directed to the following:
1. The Exchange Offer is for any and all Old Notes.
2. The Exchange Offer is subject to certain conditions set forth in the Prospectus under the caption "The Exchange Offer-Conditions to the Exchange Offer."
3. Any transfer taxes incident to the transfer of Old Notes from the holder to Anadarko Finance will be paid by Anadarko Finance, except as otherwise provided in Instruction 13 of the Letter of Transmittal.
4. The Exchange Offer expires at 5:00 P.M., New York City time, on , 2001, unless the Exchange Offer is extended.
If you wish to have us tender your Old Notes, please so instruct us by completing, executing and returning to us the instruction form on the back of this letter. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR INFORMATION ONLY AND MAY NOT BE USED DIRECTLY BY YOU TO TENDER OLD NOTES.
INSTRUCTIONS WITH RESPECT TO
THE EXCHANGE OFFER
The undersigned acknowledge(s) receipt of your letter and the enclosed materials, referred to therein relating to the Exchange Offer made by Anadarko Finance Company with respect to its Old Notes.
This will instruct you to tender the Old Notes held by you for the account of the undersigned, subject to the terms and conditions set forth in the Prospectus and the related Letter of Transmittal.
Please tender the Old Notes held by you for my account as indicated below:
6 3/4% Senior Notes due 2011 $________________________
(Aggregate Principal Amount of 10-Year Old Notes)
7 1/2% Senior Notes due 2031 $________________________
(Aggregate Principal Amount of 30-Year Old Notes)
[ ] Please do not tender any Old Notes held by you for my account
NONE OF THE OLD NOTES HELD BY US FOR YOUR ACCOUNT WILL BE TENDERED UNLESS WE RECEIVE WRITTEN INSTRUCTIONS FROM YOU TO DO SO. UNLESS A SPECIFIC CONTRARY INSTRUCTION IS GIVEN IN THE SPACE PROVIDED, YOUR SIGNATURE(S) HEREON SHALL CONSTITUTE AN INSTRUCTION TO US TO TENDER ALL THE OLD NOTES HELD BY US FOR YOUR ACCOUNT.
EXHIBIT 99(f)
, 2001
EXCHANGE AGENT AGREEMENT
The Bank of New York
Corporate Trust Trustee Administration
101 Barclay Street - 21st Floor
New York, New York 10286
Ladies and Gentlemen:
Anadarko Finance Company, an unlimited liability company organized under the laws of the province of Nova Scotia, Canada (the "Company"), proposes to make an offer (the "Exchange Offer") to exchange (i) $950,000,000 aggregate principal amount of its 6 3/4% Series A Senior Notes due 2011 (the "Old 10-Year Notes") for its 6 3/4% Series B Senior Exchange Notes due 2010 (the "New 10-Year Notes") and (ii) $900,000,000 aggregate principal amount of its 7 1/2% Series A Senior Notes due 2031 (the "Old 30-Year Notes" and together with the Old 10-Year Notes, the "Old Securities") for its 7 1/2% Series B Senior Exchange Notes due 2031 (the "New 30-Year Notes" and together with the New 10-Year Notes, the "New Securities"). The terms and conditions of the Exchange Offer as currently contemplated are set forth in a prospectus dated , 2001 (the "Prospectus"), proposed to be distributed to all record holders of the Old Securities. The Old Securities and the New Securities are collectively referred to herein as the "Securities."
The Company hereby appoints The Bank of New York to act as exchange agent (the "Exchange Agent") in connection with the Exchange Offer. References hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or about July , 2001. The Letter of Transmittal accompanying the Prospectus (or in the case of book entry securities, the ATOP system) is to be used by the holders of the Old Securities to accept the Exchange Offer and contains instructions with respect to the delivery of certificates for Old Securities tendered in connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on , 2001 or on such later date or time to which the Company may extend the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions set forth in the Prospectus, the Company expressly reserves the right to extend the Exchange Offer from time to time and may extend the Exchange Offer by giving oral (confirmed in writing) or written notice to you before 9:00 a.m., New York City time, on the business day following the previously scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate the Exchange Offer, and not to accept for exchange any Old Securities not theretofore accepted for exchange, upon the occurrence of any of the events in the Prospectus under the caption "The Exchange Offer -- Conditions to the Exchange Offer." The Company will give oral (confirmed in writing) or written notice of any amendment, termination or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in accordance with the following instructions:
1. You will perform such duties and only such duties as are specifically set forth in the section of the Prospectus captioned "The Exchange Offer" or as specifically set forth herein;
provided, however, that in no way will your general duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to each series of Old Securities at The Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in the Book-Entry Transfer Facility's systems may make book-entry delivery of each series of Old Securities by causing the Book-Entry Transfer Facility to transfer such Old Securities into your applicable account in accordance with the Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and certificates for Old Securities (or confirmation of book-entry transfer into your account at the Book-Entry Transfer Facility) and any other documents delivered or mailed to you by or for holders of the Old Securities to ascertain whether: (i) the Letters of Transmittal and any such other documents are duly executed and properly completed in accordance with instructions set forth therein and (ii) the Old Securities have otherwise been properly tendered. In each case where the Letter of Transmittal or any other document has been improperly completed or executed or any of the certificates for Old Securities are not in proper form for transfer or some other irregularity in connection with the acceptance of the Exchange Offer exists, you will endeavor to inform the presenters of the need for fulfillment of all requirements and to take any other action as may be necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the President, Senior Vice President, Executive Vice President, or any Vice President of the Company (such approval, if given orally, to be confirmed in writing) or any other party designated by such an officer in writing, you are authorized to waive any irregularities in connection with any tender of Old Securities pursuant to the Exchange Offer.
5. Tenders of Old Securities may be made only as set forth in the Letter of Transmittal and in the section of the Prospectus captioned "The Exchange Offer -- Procedures for Tendering Old Notes," and Old Securities shall be considered properly tendered to you only when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Securities which the President, any Senior Vice President, any Executive Vice President, or any Vice President of the Company shall approve as having been properly tendered shall be considered to be properly tendered (such approval, if given orally, shall be confirmed in writing).
6. You shall advise the Company with respect to any Old Securities received subsequent to the Expiration Date and accept its instructions with respect to disposition of such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old Securities are registered in two or more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of Transmittal) is acting in a fiduciary or a representative capacity only when proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old Securities, provided that customary transfer requirements, including any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Securities where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Old Securities to the transfer agent for split-up and return any untendered Old Securities to the holder (or such other person as may be designated in the Letter of Transmittal) as promptly as practicable after expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange Offer, the Company will notify you (such notice, if given orally, to be confirmed in writing) of its acceptance, promptly after the Expiration Date, of all Old 10-Year Notes and all Old 30-Year Notes properly tendered, and you, on behalf of the Company, will exchange such Old 10-Year Notes for New 10-Year Notes and such Old 30-Year Notes for New 30-Year Notes and cause such Old 10-Year Notes and such Old 30-Year Notes to be cancelled. Delivery of New Securities will be made on behalf of the Company by you at the rate of $1,000 principal amount of New Securities for each $1,000 principal amount of the corresponding series of Old Securities tendered promptly after notice (such notice if given orally, to be confirmed in writing) of acceptance of said Old Securities by the Company; provided, however, that in all cases, Old Securities tendered pursuant to the Exchange Offer will be exchanged only after timely receipt by you of certificates for such Old Securities (or confirmation of book-entry transfer into your account at the Book-Entry Transfer Facility), a properly completed and duly executed Letter of Transmittal (or facsimile thereof) with any required signature guarantees and any other required documents. You shall issue New Securities only in denominations of $1,000 or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that, subject to the terms and upon the conditions set forth in the Prospectus and the Letter of Transmittal, Old Securities tendered pursuant to the Exchange Offer may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Old Securities tendered if any of the conditions set forth in the Exchange Offer are not met. Notice of any decision by the Company not to exchange any Old Securities tendered shall be given (and confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for exchange all or part of the Old Securities tendered because of an invalid tender, the occurrence of certain other events set forth in the Prospectus under the caption "The Exchange Offer -- Conditions to the Exchange Offer" or otherwise, you shall as soon as practicable after the expiration or termination of the Exchange Offer return those certificates for unaccepted Old Securities (or effect appropriate book-entry transfer), together with any related required documents and the Letters of Transmittal relating thereto that are in your possession, to the persons who deposited them.
12. All certificates for reissued Old Securities, unaccepted Old Securities or for New Securities shall be forwarded by first-class mail.
13. You are not authorized to pay or offer to pay any concessions, commissions or solicitation fees to any broker, dealer, bank or other persons or to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those specifically set forth herein or as may be subsequently agreed to in writing by you and the Company;
(b) will be regarded as making no representations and having no responsibilities as to the validity, sufficiency, value or genuineness of any of the certificates or the Old Securities represented thereby deposited with you pursuant to the Exchange Offer, and will not be required to and will make no representation as to the validity, value or genuineness of the Exchange Offer;
(c) shall not be obligated to take any legal action hereunder which might in your reasonable judgment involve any expense or liability, unless you shall have been furnished with reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting in reliance upon any certificate, instrument, opinion, notice, letter, telegram or other document or security delivered to you and reasonably believed by you to be genuine and to have been signed by the proper party or parties;
(e) may reasonably act upon any tender, statement, request, comment, agreement or other instrument whatsoever not only as to its due execution and validity and effectiveness of its provisions, but also as to the truth and accuracy of any information contained therein, which you shall in good faith believe to be genuine and to have been signed or represented by a proper person or persons;
(f) may rely on and shall be protected in acting upon written or oral instructions from any officer of the Company;
(g) may consult with your counsel with respect to any questions relating to your duties and responsibilities and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by you hereunder in good faith and in accordance with the advice or opinion of such counsel; and
(h) shall not advise any person tendering Old Securities pursuant to the Exchange Offer as to the wisdom of making such tender or as to the market value or decline or appreciation in market value of any Old Securities.
15. You shall take such action as may from time to time be requested by the Company or its counsel (and such other action as you may reasonably deem appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the Notice of Guaranteed Delivery (as defined in the Prospectus) or such other forms as may be approved from time to time by the Company, to all persons requesting such documents and to accept and comply with telephone requests for information relating to the Exchange Offer, provided that such information shall relate only to the procedures for accepting (or withdrawing from) the Exchange Offer. The Company will furnish you with copies of such documents at your request. All other requests for information relating to the Exchange Offer shall be directed to the Company, Attention: Vice President and Treasurer.
16. You shall advise by facsimile transmission or telephone, and promptly thereafter confirm in writing to the Vice President and Treasurer of the Company and such other person or persons as it may request, daily (and more frequently during the week immediately preceding the Expiration Date and if otherwise requested) up to and including the Expiration Date, as to the number of Old Securities which have been tendered pursuant to the Exchange Offer and the items received by you pursuant to this Agreement, separately reporting and giving cumulative totals as to items properly received and items improperly received. In addition, you will also inform, and cooperate in making available to, the Company or any such other person or persons upon oral request made from time to time prior to the Expiration Date of such other information as it or he or she reasonably requests. Such cooperation shall include, without limitation, the granting by you to the Company and such person as the Company may request of access to those persons on your staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the Expiration Date the Company shall have received information in sufficient detail to enable it to decide whether to extend the Exchange Offer. You shall prepare a final list of all persons whose tenders were accepted, the aggregate principal amount of Old Securities tendered, the aggregate principal amount of Old Securities accepted and deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be stamped by you as to the date and the time of receipt thereof and shall be preserved by you for a period of time at least equal to the period of time you preserve other records pertaining to the transfer of securities. You shall dispose of unused Letters of Transmittal and other surplus materials by returning them to the Company.
18. You hereby expressly waive any lien, encumbrance or right of set-off whatsoever that you may have with respect to funds deposited with you for the payment of transfer taxes by reasons of amounts, if any, borrowed by the Company, or any of its subsidiaries or affiliates pursuant to any loan or credit agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be entitled to such compensation as set forth on Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus and the Letter of Transmittal and further acknowledge that you have examined each of them. Any inconsistency between this Agreement, on the one hand, and the Prospectus and the Letter of Transmittal (as they may be amended from time to time), on the other hand, shall be resolved in favor of the latter two documents, except with respect to the duties, liabilities and indemnification of you as Exchange Agent, which shall be controlled by this Agreement.
21. The Company covenants and agrees to indemnify and hold you harmless in your capacity as Exchange Agent hereunder against any loss, liability, cost or expense, including attorneys' fees and expenses, arising out of or in connection with any act, omission, delay or refusal made by you in reliance upon any signature, endorsement, assignment, certificate, order, request, notice, instruction or other instrument or document reasonably believed by you to be valid, genuine and sufficient and in accepting any tender or effecting any transfer of Old Securities reasonably believed by you in good faith to be authorized, and in delaying or refusing in good faith to accept any tenders or effect any transfer of Old Securities; provided, however, that the Company shall not be liable for indemnification or otherwise for any loss, liability, cost or expense to the extent arising out of your gross negligence or willful misconduct. In no case shall the Company be liable under this indemnity with respect to any claim against you unless the Company shall be notified by you, by letter or by facsimile confirmed by letter, of the written assertion of a claim against you or of any other action commenced against you, promptly after you shall have received any such written assertion or notice of commencement of action. The Company shall be entitled to participate at its own expense in the defense of any such claim or other action, and, if the Company so elects, the Company shall assume the defense of any suit brought to enforce any such claim. In the event that the Company shall assume the defense of any such suit, the Company shall not be liable for the fees and expenses of any additional counsel thereafter retained by you so long as the Company shall retain counsel reasonably satisfactory to you to defend such suit, and so long as you have not determined, in your reasonable judgment, that a conflict of interest exists between you and the Company.
22. You shall arrange to comply with all requirements under the tax laws of the United States, including those relating to missing Tax Identification Numbers, and shall file any appropriate reports with the Internal Revenue Service. The Company understands that you are required to deduct 31% on payments to holders who have not supplied their correct Taxpayer Identification Number or required certification. Such funds will be turned over to the Internal Revenue Service in accordance with applicable regulations.
23. You shall deliver or cause to be delivered, in a timely manner to each governmental authority to which any transfer taxes are payable in respect of the exchange of Old Securities, the
Company's check in the amount of all transfer taxes so payable, and the Company shall reimburse you for the amount of any and all transfer taxes payable in respect of the exchange of Old Securities; provided, however, that you shall reimburse the Company for amounts refunded to you in respect of your payment of any such transfer taxes, at such time as such refund is received by you.
24. This Agreement and your appointment as Exchange Agent hereunder shall be construed and enforced in accordance with the laws of the State of New York applicable to agreements made and to be performed entirely within such state, and without regard to conflicts of law principles, and shall inure to the benefit of, and the obligations created hereby shall be binding upon, the successors and assigns of each of the parties hereto.
25. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
26. In case any provision of this Agreement 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.
27. This Agreement shall not be deemed or construed to be modified, amended, rescinded, cancelled or waived, in whole or in part, except by a written instrument signed by a duly authorized representative of the party to be charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests and other communications to any party hereunder shall be in writing (including facsimile or similar writing) and shall be given to such party, addressed to it, at its address or facsimile number set forth below:
If to the Company:
Anadarko Finance Company
17001 Northchase Drive
Houston, TX 77060
Facsimile: (281) 863-7077
Attention: Vice President and Treasurer
If to the Exchange Agent:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Facsimile: (212) 815-5915
Attention: Corporate Trust Trustee Administration
29. Unless terminated earlier by the parties hereto, this Agreement shall terminate 90 days following the Expiration Date. Notwithstanding the foregoing, Paragraphs 19, 21 and 23 shall survive the termination of this Agreement. Upon any termination of this Agreement, you shall promptly deliver to the Company any certificates for Securities, funds or property then held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date hereof.
(Signature Page Follows)
Please acknowledge receipt of this Agreement and confirm the arrangements herein provided by signing and returning the enclosed copy.
ANADARKO FINANCE COMPANY
Accepted as of the date first above written:
THE BANK OF NEW YORK, as Exchange Agent
SCHEDULE I
FEES
$3,500 for Exchange Offer
$500 for each extension thereof
Schedule I - Page 1