EXHIBIT 4.4




 


Dated as of  February 24, 2013


 


NEXEN INC.


 


and


 


DEUTSCHE BANK TRUST COMPANY AMERICAS


 


 


 


 


 


 


THIRD SUPPLEMENTAL INDENTURE


 


to the


 


TRUST INDENTURE


 


Dated as of May 4, 2007




 



	 





THIRD SUPPLEMENTAL INDENTURE (this “Third Supplemental Indenture”) dated as of February 24, 2013 between Nexen Inc., a corporation existing under the Canada Business Corporations Act (the “CBCA”) and having its head office in the City of Calgary, in the Province of Alberta (“Nexen AmalCo”) and DEUTSCHE BANK TRUST COMPANY AMERICAS, a banking corporation duly organized and existing under the laws of the State of New York, having an office in the City of New York, in the State of New York (the “Trustee”).


 


RECITALS OF THE COMPANY


 


WHEREAS, Nexen AmalCo was formed by the amalgamation of Nexen Inc. (“Nexen”), a corporation existing under the CBCA, and Nexen Petroleum International Inc. (“NPII”), a corporation existing under the CBCA and a wholly owned subsidiary of Nexen (the “Amalgamation”) ;


 


WHEREAS, Nexen AmalCo, the corporation formed by the amalgamation of Nexen and NPII, is named Nexen Inc.;







WHEREAS, Nexen and the Trustee are parties to that certain indenture dated as of May 4, 2007 (the “Original Indenture”), as amended by the First Supplemental Indenture dated as of May 4, 2007 (the “First Supplemental Indenture”), by the Second Supplemental Indenture, dated as of July 30, 2009 (the “Second Supplemental Indenture” and the Second Supplemental Indenture together with the Original Indenture and the First Supplemental Indenture, the “Indenture”), pursuant to which US$250,000,000 of 5.65% Notes due 2017, US$1,250,000,000 of 6.40% Notes due 2037, US$300,000,000 of 6.20% Notes due 2019 and US$700,000,000 of 7.50% Notes due 2039 were issued (collectively, the “Securities”);







WHEREAS, Section 8.01(a)(ii) of the Original Indenture provides, in part, that Nexen may amalgamate with another Person so long as the successor company shall expressly assume by supplemental indenture, executed and delivered to the Trustee, Nexen’s obligations under the Securities and the Indenture;


 


 




  





  











  











WHEREAS, Section 9.01(1) of the Original Indenture provides for the entering into of a supplemental indenture to evidence, among other things, the succession of another entity to Nexen and the assumption by any such successor of the covenants of Nexen contained in the Indenture and in the Securities;







WHEREAS, Nexen has requested that the Trustee execute and deliver this Third Supplemental Indenture.  Nexen has delivered to the Trustee an Opinion of Counsel and an Officers’ Certificate pursuant to Sections 1.02, 8.01(e) and 9.03 of the Original Indenture to the effect  (i) that the Amalgamation and the execution of the Third Supplemental Indenture complies with this Indenture and all conditions precedent in this Indenture relating to the Amalgamation and the Third Supplemental Indenture have been complied with and (ii) that the execution of the Third Supplemental Indenture is authorized or permitted by the Indenture.  Nexen has further delivered to the Trustee an Opinion of Counsel pursuant to Sections 8.01(b) of the Original Indenture to the effect that the Amalgamation  is upon  such terms as substantially to preserve and not to prejudice any of the rights and powers of the Trustee or of the Holders of Securities. Nexen has further delivered to the Trustee an opinion of outside counsel of nationally recognized standing with respect to certain matters of Canadian  federal  income taxation pursuant to Sections 8.01(d) of the Original Indenture; and


 


WHEREAS the Board of Directors of Nexen has duly authorized the Amalgamation.




 


NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH: that for good and valuable consideration (the receipt and sufficiency or which are hereby acknowledged by each of the parties), the parties hereto agrees as follows:


 



	
1.

	
INTERPRETATIONS AND AMENDMENTS







 



	
1.1

	
Definitions in Third Supplemental Indenture







 


All terms contained in this Third Supplemental Indenture which are defined in the Indenture and not defined herein shall, for all purposes hereof, have the meanings given to such terms in the Indenture.


 



	
1.2

	
Interpretation not Affected by Headings







 


The division of this Third Supplemental Indenture into Articles and Sections, the provision of the table of contents hereto and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Third Supplemental Indenture.








	
2. 

	
SUCCESSION













	
2.1.

	
Succession to Indenture.







 


Pursuant to the Amalgamation, Nexen AmalCo hereby succeeds to and is substituted for Nexen as the “Issuer” under the Indenture and the Securities, with the same effect as if Nexen AmalCo had been a party to the Indenture.  Nexen AmalCo agrees to comply with all applicable terms of the Indenture.








	
2.2.

	
Assumption of Obligations and Covenants.







 


Pursuant to the Amalgamation, Nexen AmalCo hereby assumes all obligations and covenants of, and may exercise every right and power of Nexen. under the Indenture and the Securities.








	
2.3 

	
Representations and Warranties.







 


Nexen AmalCo hereby represents and warrants that:







(i)           it is a duly incorporated entity, validly existing and in good standing under the laws of its jurisdiction of formation;







(ii)          it has full power, right and authority to execute and deliver this Third Supplemental Indenture and to consummate the transactions contemplated hereby and by the Indenture;







(iii)         the execution and delivery of this Third Supplemental Indenture and the consummation of the transactions contemplated hereby have been duly and validly approved by all requisite action on its part; and this Third Supplemental Indenture has been duly executed and delivered by it, and assuming the 


 


 




  





  











  






 


due authorization, execution and delivery of this Third Supplemental Indenture by the Trustee, this Third Supplemental Indenture constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms; and







(iv)         any registration, declaration, or filing with, or consent, approval, license, permit, or other authorization or order by, any governmental or regulatory authority, domestic or foreign, that is required of it in connection with the valid execution, delivery, acceptance, and performance by it under this Third Supplemental Indenture or the consummation by it of any transaction contemplated hereby has been completed, made, or obtained.








	
2.4

	
Notice Address







 


References in the Indenture and related transaction documents to the notice address of the Issuer shall be deemed to refer to the address of Nexen AmalCo at: 801- 7th Avenue S.W. Calgary, Alberta, Canada, T2P 3P7.








	
3.

	
GENERAL







 



	
3.1 

	
Effectiveness







 


This Third Supplemental Indenture will become effective upon its execution and delivery by the parties hereto.


 



	
3.2

	
Effect of Recitals







 


The recitals contained herein shall be taken as the statements of the Issuer, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness.


 



	
3.3

	
Ratification of Indenture







 


The Indenture as supplemented by this Third Supplemental Indenture is in all respects ratified and confirmed, and this Third Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided.


 



	
3.4

	
Governing Law







 


This Third Supplemental Indenture and the Indenture as supplemented hereby shall be governed by and construed in accordance with the laws of the State of New York.


 



	
3.5

	
Severability







 


In case any provision in this Third Supplemental Indenture and the Indenture as supplemented hereby 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.








	
3.6

	
Counterparts and Formal Date







 


This Third Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument and notwithstanding their date of execution shall be deemed to bear the date first above written.  The parties hereto may provide signatures to this Third Supplemental Indenture by facsimile or electronic mail, and such facsimile or electronic mail signatures shall be deemed to be the same as original signatures.


 




 


 







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IN WITNESS WHEREOF the parties hereto have executed this Third Supplemental Indenture on the date first above written.


 


 




	 	
NEXEN INC.

	 
	 	 	 	 
	
 

	
Per: 

	/s/ Una M. Power	 
	 	 	Name:  Una M. Power	 
	 	 	
Title: Interim Chief Financial Officer 


and Senior Vice President, Corporate 


Planning and Business Development

	 
	 	 	 	 







 




	 	 	 	 
	
 

	
Per: 

	/s/ J. Michael Backus	 
	 	 	Name:  J. Michael Backus	 
	 	 	
Title: Treasurer

	 
	 	 	 	 





 







	 	
DEUTSCHE BANK TRUST   


COMPANY AMERICAS, as trustee

	 
	 	 	 	 
	
 

	
By

	Deutsche Bank National Trust Company 	 
	 	 	 	 
	 	
Per:

	/s/ Kelvin Vargas	 
	 	 	
Name: Kelvin Vargas

	 
	 	 	
Title: Associate

	 











	 	 	 	 
	 	
Per:

	/s/ Jeffrey Schoenfeld	 
	 	 	
Name: Jeffrey Schoenfeld

	 
	 	 	
Title: Associate

	 
	 	 	 

















 






















[Signature Page to Third Supplemental Indenture to Nexen’s 2007 Indenture]