AMENDED AND RESTATED VOTING AND EXCHANGE TRUST AGREEMENT among ENERPLUS RESOURCES FUND - and - ENERPLUS EXCHANGEABLE LIMITED PARTNERSHIP - and - COMPUTERSHARE TRUST COMPANY OF CANADA Dated as of May 30, 2008
Exhibit
99.2
AMENDED
AND RESTATED
among
-
and -
ENERPLUS
EXCHANGEABLE LIMITED PARTNERSHIP
-
and -
COMPUTERSHARE
TRUST COMPANY OF CANADA
Dated
as of May 30, 2008
TABLE
OF CONTENTS
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INTERPRETATION
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1.1
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Definitions
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1
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1.2
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Interpretation
Not Affected by Headings, etc
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4
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1.3
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Currency
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4
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1.4
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Number,
etc
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4
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1.5
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Date
For Any Action
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4
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1.6
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Entire
Agreement
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4
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1.7
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Accounting
Matters
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4
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1.8
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Construction
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5
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1.9
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Governing
Law
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5
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ARTICLE 2
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PURPOSE
OF AGREEMENT
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2.1
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Establishment
of the Trust
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5
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ARTICLE 3
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ENERPLUS
SPECIAL VOTING RIGHT
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3.1
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Issue
and Ownership of the Enerplus Special Voting Right
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5
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3.2
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Legended
Share Certificates
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6
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3.3
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Safe
Keeping of Certificate
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6
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ARTICLE 4
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EXERCISE
OF VOTING RIGHTS
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4.1
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Voting
Rights
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6
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4.2
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Number
of Votes
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6
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4.3
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Mailings
to Unitholders
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6
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4.4
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Copies
of Unitholder Information
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7
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4.5
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Other
Materials
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8
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4.6
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List
of Persons Entitled to Vote
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8
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4.7
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Entitlement
to Direct Votes
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8
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4.8
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Voting
by the Trustee and Attendance of Trustee Representative at
Meeting
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8
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4.9
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Distribution
of Written Materials
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9
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4.10
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Termination
of Voting Rights
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9
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ARTICLE 5
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EXCHANGE
RIGHT AND AUTOMATIC EXCHANGE
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5.1
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Grant
and Ownership of the Exchange Right
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10
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5.2
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Legended
Share Certificates
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10
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5.3
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General
Exercise of Exchange Right
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10
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5.4
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Purchase
Price
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11
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- i
-
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5.5
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Exercise
Instructions
|
11
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5.6
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Delivery
of Enerplus Units; Effect of Exercise
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11
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5.7
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Exercise
of Exchange Right Subsequent to Retraction
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12
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5.8
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Stamp
or Other Transfer Taxes
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12
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5.9
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Notice
of Insolvency Event
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12
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5.10
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Qualification
of Enerplus Units
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13
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5.11
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Enerplus
Units
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13
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5.12
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Automatic
Exchange on Liquidation of Enerplus
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13
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5.13
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Withholding
Rights
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14
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ARTICLE 6
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CONCERNING
THE TRUSTEE
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6.1
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Powers
and Duties of the Trustee
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14
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6.2
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No
Conflict of Interest
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15
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6.3
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Dealings
with Transfer Agents, Registrars, etc
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16
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6.4
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Books
and Records
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16
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6.5
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Indemnification
Prior to Certain Actions by the Trustee
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16
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6.6
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Action
of Beneficiaries
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17
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6.7
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Reliance
Upon Declarations
|
17
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6.8
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Evidence
and Authority to the Trustee
|
17
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6.9
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Experts,
Advisers and Agents
|
18
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6.10
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Investment
of Moneys Held by the Trustee
|
18
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6.11
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Trustee
Not Required to Give Security
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18
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6.12
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Trustee
Not Bound to Act on Request
|
19
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6.13
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Authority
to Carry on Business
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19
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6.14
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Conflicting
Claims
|
19
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6.15
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Acceptance
of the Trust
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19
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6.16
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Maintenance
of Office or Agency
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19
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ARTICLE 7
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COMPENSATION
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7.1
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Fees
and Expenses of the Trustee
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20
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ARTICLE 8
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INDEMNIFICATION
AND LIMITATION OF LIABILITY
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8.1
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Indemnification
of the Trustee
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20
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8.2
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Limitation
of Liability
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21
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ARTICLE 9
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CHANGE
OF TRUSTEE
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9.1
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Resignation
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21
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9.2
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Removal
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21
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- ii
-
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9.3
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Successor
Trustee
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21
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9.4
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Notice
of Successor Trustee
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21
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ARTICLE 10
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ENERPLUS
SUCCESSORS
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10.1
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Certain
Requirements in Respect of Combination, etc
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22
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10.2
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Vesting
of Powers in Successor
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22
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10.3
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Wholly-Owned
Subsidiaries
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22
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10.4
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Successorship
Transaction
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22
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ARTICLE 11
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AMENDMENTS
AND SUPPLEMENTAL TRUST AGREEMENTS
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11.1
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Amendments,
Modifications, etc
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23
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11.2
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Administrative
Amendments
|
23
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11.3
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Meeting
to Consider Amendments
|
23
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11.4
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Changes
in Capital of Enerplus or EELP
|
24
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11.5
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Execution
of Supplemental Trust Agreements
|
24
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ARTICLE 12
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TERMINATION
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12.1
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Term
|
24
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12.2
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Survival
of Agreement
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25
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ARTICLE 13
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GENERAL
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13.1
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Assignment
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25
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13.2
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Binding
Effect
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25
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13.3
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Notices
to Parties
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25
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13.4
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Notice
to Beneficiaries
|
26
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13.5
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Severability
|
26
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13.6
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Further
Assurances
|
26
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13.7
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Execution
in Counterparts
|
26
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13.8
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Waiver
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26
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13.9
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Limitations
on Liability
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27
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- iii
-
THIS AMENDED AND RESTATED VOTING AND
EXCHANGE TRUST AGREEMENT dated as of May 30, 2008, amending and restating
the Amended and Restated Voting and Exchange Trust Agreement dated February 13,
2008.
AMONG:
ENERPLUS RESOURCES FUND, a
trust established under the laws of Alberta ("Enerplus")
-
and -
ENERPLUS EXCHANGEABLE LIMITED
PARTNERSHIP, a limited partnership established under the laws of Alberta
("EELP" or the "Partnership")
-
and -
COMPUTERSHARE TRUST COMPANY OF
CANADA, a
trust company existing under the laws of Canada (hereinafter referred to as the
"Trustee")
WHEREAS in connection with the
Profico Arrangement, the Partnership (then known as "Focus Limited Partnership")
issued Exchangeable Securities to certain holders of common shares of Profico
Energy Management Ltd.;
AND WHEREAS in connection
therewith, Focus Energy Trust ("Focus"), the Partnership and
Valiant Trust Company executed a voting and exchange trust agreement dated June
27, 2006 (the "Original
Agreement");
AND WHEREAS the Original
Agreement was amended and restated in connection with a plan of arrangement
effective February 13, 2008 among Enerplus, EnerMark Inc., Focus and FET
Resources Ltd., pursuant to which, inter alia, Enerplus assumed
the covenants and obligations of Focus with respect to the issue of Enerplus
Units pursuant to the Exchangeable Securities Provisions and CIBC Mellon Trust
Company replaced Valiant Trust Company as Trustee under this
Agreement;
AND WHEREAS effective April 1,
2008 the Partnership changed its name from "Focus Limited Partnership" to
"Enerplus Exchangeable Limited Partnership" and FET Management Ltd., the general
partner of the Partnership, amalgamated with and continued as "EnerMark
Inc.";
AND WHEREAS effective May 30,
2008, Computershare Trust Company of Canada ("Computershare") replaced CIBC
Mellon Trust Company as trustee and transfer agent of Enerplus and as such
Enerplus and the Partnership have appointed Computershare as Trustee
hereunder;
NOW THEREFORE in consideration
of the respective covenants and agreements provided in this Agreement and for
other good and valuable consideration (the receipt and sufficiency of which are
hereby acknowledged), the parties hereto covenant and agree as
follows:
ARTICLE 1
INTERPRETATION
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1.1
|
Definitions
|
In
this Agreement, unless the context otherwise requires, the following terms shall
have the following meanings respectively:
|
(a)
|
"ABCA" means the Business Corporations
Act (Alberta), as amended from time to time, including the
regulations from time to time promulgated
thereunder;
|
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(b)
|
"affiliate" or "associate" when used to
indicate a relationship with a person or company, has the same meaning as
set forth in the Securities Act
(Alberta);
|
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(c)
|
"Agreement", "herein", "hereof", "hereto", "hereunder" and similar
expressions mean and refer to this Voting and Exchange Trust Agreement, as
from time to time amended, supplemented or restated and not to any
particular article, section, schedule or other portion
hereof;
|
|
(d)
|
"applicable law" means
any applicable law including any statute, regulation, by-law, treaty,
guideline, directive, rule, standard, requirement, policy, order,
judgement, decision, injunction, award, decree or resolution of any
governmental authority, whether or not having the force of
law;
|
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(e)
|
"Automatic Exchange
Rights" means the benefit of the obligation of Enerplus to effect
the automatic exchange of Exchangeable Securities for Enerplus Units
pursuant to Section 5.12;
|
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(f)
|
"Beneficiaries" means the
registered holders from time to time of Exchangeable Securities, other
than Enerplus and its affiliates;
|
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(g)
|
"Beneficiary Votes" has
the meaning ascribed thereto in Section
4.2;
|
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(h)
|
"Business Day" means a
day, other than a Saturday, Sunday or statutory holiday, when banks are
generally open in Calgary, Alberta, for the transaction of banking
business;
|
|
(i)
|
"Class B Unit
Consideration" has the meaning ascribed thereto in the Exchangeable
Securities Provisions;
|
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(j)
|
"Class B Unit Price" has
the meaning ascribed thereto in the Exchangeable Securities
Provisions;
|
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(k)
|
"Court" means the Court
of Queen's Bench of Alberta;
|
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(l)
|
"EELP B Units" means the
Class B limited partnership units of EELP, each of which is exchangeable
into 0.425 of an Enerplus Unit;
|
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(m)
|
"Enerplus Special Voting
Right" means the special voting right of Enerplus issued by
Enerplus and deposited with the Trustee, which shall entitle, inter alia, the holders
of EELP B Units to such number of votes at meetings of holders of Enerplus
Units as equals the number of Enerplus Units issuable from time to time on
the redemption, retraction or exchange of those EELP B
Units;
|
|
(n)
|
"Enerplus Unit" means a
trust unit of Enerplus, each such unit representing an equal undivided
beneficial interest therein;
|
|
(o)
|
"Enerplus Unitholders"
means the holders from time to time of Enerplus
Units;
|
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(p)
|
"Equivalent Vote Amount"
means, with respect to any matter, proposition or question on which
holders of Enerplus Units are entitled to vote, consent or otherwise act,
the number of votes to which a holder of 0.425 of an Enerplus Unit is
entitled with respect to such matter, proposition or
question;
|
|
(q)
|
"Exchange Right" has the
meaning ascribed thereto in Section
5.1;
|
|
(r)
|
"Exchangeable Securities"
means EELP B Units;
|
|
(s)
|
"Exchangeable Securities
Provisions" means the rights, privileges, restrictions and
conditions attaching to the Exchangeable
Securities;
|
|
(t)
|
"General Partner" means
EnerMark Inc., a corporation amalgamated pursuant to the laws of
Alberta;
|
- 2
-
|
(u)
|
"governmental authority"
includes any court (including a court of equity); any multinational,
federal, provincial, state, regional, municipal or other government or
governmental department, ministry, commission, board, bureau, agency or
instrumentality; any securities commission, stock exchange or other
regulatory or self-regulatory body; any arbitrator or arbitration
authority; or any other governmental
authority;
|
|
(v)
|
"Indemnified Parties" has
the meaning ascribed thereto in Section
8.1;
|
|
(w)
|
"Insolvency Event" means,
in respect of EELP: (i) the institution by it of any proceeding to be
adjudicated a bankrupt or insolvent or to be wound up, or its consent to
the institution of bankruptcy, insolvency, dissolution or winding-up
proceedings against it; or (ii) the filing of a petition or other
proceeding to adjudicate it a bankrupt or insolvent seeking dissolution or
winding-up under any bankruptcy, insolvency or analogous laws, and its
failure to contest in good faith any such proceedings commenced in respect
of it within 30 days of becoming aware thereof, or its consent to the
appointment of a receiver; or (iii) its making of a general assignment for
the benefit of creditors, or its admission in writing of its inability to
pay its debts generally as they become due; or (iv) it not being
permitted, pursuant to applicable law, to redeem any Retracted Securities
pursuant to Section 6.5 of the Exchangeable Securities
Provisions;
|
|
(x)
|
"Limited Partnership
Agreement" means the amended and restated limited partnership
agreement dated as of February 13, 2008 among the General Partner, Focus
Commercial Trust and each person who from time to time is accepted and
becomes a limited partner pursuant thereto, as from time to time amended,
supplemented or restated;
|
|
(y)
|
"Liquidation Call Right"
has the meaning ascribed thereto in the Exchangeable Securities
Provisions;
|
|
(z)
|
"Liquidation Event" has
the meaning ascribed thereto in Section
5.12(b);
|
|
(aa)
|
"Liquidation Event Effective
Time" has the meaning ascribed thereto in Section
5.12(c);
|
|
(bb)
|
"List" has the meaning
ascribed thereto in Section 4.6;
|
|
(cc)
|
"Officer's Certificate"
means, with respect to Enerplus or EELP, as the case may be, a certificate
signed by any one of the authorized signatories of EnerMark Inc., as
administrator, on behalf of Enerplus or the General Partner on behalf of
EELP;
|
|
(dd)
|
"Partnership Loan
Indebtedness" means, in respect of any Exchangeable Security, the
amount of all loans made under Article 3 of the Exchangeable Securities
Provisions in respect of such Exchangeable Security that are not repaid or
satisfied by set off as of the effective date of exercise of the Exchange
Right in respect of such Exchangeable
Security;
|
|
(ee)
|
"person" includes any
individual, body corporate, partnership, association, joint venture,
trust, other organization or entity (whether or not a legal entity) or
governmental authority;
|
|
(ff)
|
"Profico Arrangement" means the
plan of arrangement under Section 193 of the ABCA completed effective June
27, 2006, among, inter
alia, Focus Energy Trust, FET Acquisition Corp. and Profico Energy
Management Ltd.;
|
|
(gg)
|
"Redemption Date" has the
meaning ascribed thereto in the Exchangeable Securities
Provisions;
|
|
(hh)
|
"Retracted Securities"
has the meaning ascribed thereto in Section
5.7;
|
|
(ii)
|
"Support Agreement" means
the amended and restated support agreement dated as of February 13, 2008
among Enerplus, EELP and the General Partner, as from time to time
amended, supplemented or restated;
|
|
(jj)
|
"Trust" means the trust
created by this Agreement;
|
- 3
-
|
(kk)
|
"Trust Consent" has the
meaning ascribed thereto in Section
4.2;
|
|
(ll)
|
"Trust Control
Transaction" has the meaning ascribed thereto in the Exchangeable
Securities Provisions;
|
|
(mm)
|
"Trust Estate" means the
Enerplus Special Voting Right, any other securities, the Exchange Right,
the Automatic Exchange Rights and any money or other property which may be
held by the Trustee from time to time pursuant to this
Agreement;
|
|
(nn)
|
"Trust Meeting" has the
meaning ascribed thereto in Section
4.2;
|
|
(oo)
|
"Trust Successor" has the
meaning ascribed thereto in Section
10.1(a);
|
|
(pp)
|
"Unitholders" means the
holders from time to time of Units;
|
|
(qq)
|
"Units" means the
Enerplus Units and the Enerplus Special Voting Right;
and
|
|
(rr)
|
"Voting Rights" means the
voting rights of the Enerplus Special Voting Right held by the
Trustee.
|
|
1.2
|
Interpretation
Not Affected by Headings, etc.
|
The
division of this Agreement into sections and other portions and the insertion of
headings are for convenience of reference only and shall not affect the
construction or interpretation hereof. Unless otherwise indicated,
all references in this Agreement to an "Article" or "Section" followed by a
number and/or a letter refer to the specified article or section of this
Agreement.
|
1.3
|
Currency
|
Unless
otherwise indicated, all sums of money referred to in this Agreement are
expressed in lawful money of Canada.
|
1.4
|
Number,
etc.
|
Unless
the context otherwise requires, words importing the singular shall include the
plural and vice versa and words importing any gender shall include all
genders.
|
1.5
|
Date
For Any Action
|
In
the event that any date on which any action is required to be taken hereunder by
any of the parties hereto is not a Business Day, such action shall be required
to be taken on the next succeeding day which is a Business Day.
|
1.6
|
Entire
Agreement
|
This
Agreement and the agreements and other documents referred to herein constitute
the entire agreement between the parties with respect to the transactions
contemplated hereby and supersede all other prior agreements, understandings,
negotiations and discussions, whether oral or written, between the parties with
respect thereto.
|
1.7
|
Accounting
Matters
|
Unless
otherwise indicated, all accounting terms used in this Agreement shall have the
meanings attributable thereto under Canadian generally accepted accounting
principles and all determinations of an accounting nature required to be made
shall be made in a manner consistent with Canadian generally accepted accounting
principles and past practice.
- 4
-
|
1.8
|
Construction
|
In
this Agreement, unless otherwise indicated:
|
(a)
|
the
words "include", "including" or "in particular", when following any
general term or statement, shall not be construed as limiting the general
term or statement to the specific items or matters set forth or to similar
items or matters, but rather as permitting the general term or statement
to refer to all other items or matters that could reasonably fall within
the broadest possible scope of the general term or
statement;
|
|
(b)
|
a
reference to a statute means that statute, as amended and in effect as of
the date of this Agreement, and includes each and every regulation and
rule made thereunder and in effect as of the date
hereof;
|
|
(c)
|
a
reference to an "approval", "authorization", "consent", "designation",
"notice" or "agreement" means an approval, authorization, consent,
designation, notice or agreement, as the case may be, in writing, signed
by an authorized representative of the party or parties
thereto;
|
|
(d)
|
the
phrase "ordinary course of business", or any variation thereof, of any
person refers to the business of such person, carried on in the regular
and ordinary course including commercially reasonable and businesslike
actions that are in the regular and ordinary course of business for a
company operating in the industry in which such business is
conducted;
|
|
(e)
|
where
a word, term or phrase is defined, its derivatives or other grammatical
forms have a corresponding meaning;
|
|
(f)
|
time
is of the essence; and
|
|
(g)
|
references
to a "party" or "parties" are references to a party or parties to this
Agreement.
|
|
1.9
|
Governing
Law
|
This
Agreement shall be governed by and construed in accordance with the laws of
Alberta and the federal laws of Canada applicable therein.
ARTICLE 2
PURPOSE
OF AGREEMENT
|
2.1
|
Establishment
of the Trust
|
The
purpose of this Agreement is to create the Trust for the benefit of the
Beneficiaries and Enerplus, as herein provided. The Trustee shall
hold the Enerplus Special Voting Right in order to enable the Trustee to
exercise the Voting Rights and will hold the Exchange Right and the Automatic
Exchange Rights in order to enable the Trustee to exercise such rights, in each
case as trustee for and on behalf of the Beneficiaries as provided in this
Agreement. The Trustee shall hold the Enerplus Special Voting Right
for and on behalf of Enerplus for all other rights associated with such Enerplus
Special Voting Right other than the Voting Rights.
ARTICLE 3
ENERPLUS
SPECIAL VOTING RIGHT
|
3.1
|
Issue
and Ownership of the Enerplus Special Voting
Right
|
Enerplus,
concurrently with its execution of this Agreement, issues to, and deposits with,
the Trustee the Enerplus Special Voting Right to be hereafter held of record by
the Trustee as trustee for and on behalf of, and for the use and benefit of, the
Beneficiaries and in accordance with the provisions of this
Agreement. Enerplus hereby acknowledges receipt from the Trustee as
trustee for and on behalf of the Beneficiaries of good and valuable
consideration (and the adequacy thereof) for the issuance of the Enerplus
Special Voting Right by Enerplus to the Trustee. During the term of
the Trust and subject to the terms and conditions of this Agreement, the Trustee
shall possess and be vested with full legal ownership of such Enerplus Special
Voting Right and shall be entitled to exercise all of the rights and powers of
an owner with respect to such Enerplus Special Voting Right provided that the
Trustee shall:
- 5
-
|
(a)
|
hold
such Enerplus Special Voting Right and the legal title thereto as trustee
solely for the use and benefit of the Beneficiaries in accordance with the
provisions of this Agreement; and
|
|
(b)
|
except
as specifically authorized by this Agreement, have no power or authority
to sell, transfer, vote or otherwise deal in or with such Enerplus Special
Voting Right and such Enerplus Special Voting Right shall not be used or
disposed of by the Trustee for any purpose other than the purposes for
which this Trust is created pursuant to this
Agreement.
|
|
3.2
|
Legended
Share Certificates
|
EELP
will cause each certificate representing Exchangeable Securities issued by it to
bear an appropriate legend notifying the Beneficiaries of their right to
instruct the Trustee with respect to the exercise of the portion of the Voting
Rights in respect of the Exchangeable Securities held by the
Beneficiaries.
|
3.3
|
Safe
Keeping of Certificate
|
The
physical certificate representing the Enerplus Special Voting Right shall at all
times be held in safe keeping by the Trustee or its duly authorized
agent.
ARTICLE 4
EXERCISE
OF VOTING RIGHTS
|
4.1
|
Voting
Rights
|
The
Trustee, as the holder of record of the Enerplus Special Voting Right forming
part of the Trust Estate, shall be entitled to all of the Voting Rights,
including the right to vote in person or by proxy the Enerplus Special Voting
Right held by the Trustee on any matter, question, proposal or proposition
whatsoever that may properly come before the Unitholders at a Trust Meeting or
in connection with a Trust Consent. The Voting Rights shall be and
remain vested in and exercised by the Trustee. Subject to Section
6.15, the Trustee shall exercise the Voting Rights only on the basis of
instructions received pursuant to this Article 4 from Beneficiaries entitled to
instruct the Trustee as to the voting thereof at the time at which the Trust
Meeting is held or a Trust Consent is sought. To the extent that no
instructions are received from a Beneficiary with respect to the Voting Rights
to which such Beneficiary is entitled, the Trustee shall not exercise or permit
the exercise of such Voting Rights.
|
4.2
|
Number
of Votes
|
With
respect to all meetings of Unitholders at which Unitholders are entitled to vote
(each, a "Trust
Meeting") and with respect to all written consents sought from the
Unitholders (each, a "Trust
Consent"), each Beneficiary shall be entitled to instruct the Trustee to
cast and exercise, in the manner instructed, a number of votes equal to the
Equivalent Vote Amount for each Exchangeable Security owned of record by such
Beneficiary on the record date established by Enerplus or by applicable law for
such Trust Meeting or Trust Consent, as the case may be, (collectively, the
"Beneficiary Votes") in
respect of each matter, question, proposal or proposition to be voted on at such
Trust Meeting or consented to in connection with such Trust
Consent.
|
4.3
|
Mailings
to Unitholders
|
With
respect to each Trust Meeting and Trust Consent, the Trustee will use its
reasonable efforts promptly to mail or cause to be mailed (or otherwise
communicate in the same manner as Enerplus utilizes in communications to holders
of Enerplus Units subject to applicable regulatory requirements and provided
such manner of communication is reasonably available to the Trustee) to each of
the Beneficiaries named in the List, such mailing or communication to commence
on the same day as the mailing or notice (or other communication) with respect
thereto is commenced by Enerplus to its Enerplus Unitholders:
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|
(a)
|
a
copy of such notice, together with any related materials, including any
proxy or information statement, to be provided to Enerplus Unitholders of
Enerplus;
|
|
(b)
|
a
statement that such Beneficiary is entitled to instruct the Trustee as to
the exercise of the Beneficiary Votes with respect to such Trust Meeting
or Trust Consent or, pursuant to Section 4.7, to attend such Trust Meeting
and to exercise personally thereat the Beneficiary Votes of such
Beneficiary;
|
|
(c)
|
a
statement as to the manner in which such instructions may be given to the
Trustee, including an express indication that instructions may be given to
the Trustee to give:
|
|
|
(i)
|
a
proxy to such Beneficiary or its designee to exercise personally the
Beneficiary Votes; or
|
|
|
(ii)
|
a
proxy to a designated agent or other representative of the management of
Enerplus to exercise such Beneficiary
Votes;
|
|
(d)
|
a
statement that if no such instructions are received from the Beneficiary,
the Beneficiary Votes to which such Beneficiary is entitled will not be
exercised;
|
|
(e)
|
a
form of direction whereby the Beneficiary may so direct and instruct the
Trustee as contemplated herein; and
|
|
(f)
|
a
statement of the time and date by which such instructions must be received
by the Trustee in order to be binding upon it, which in the case of a
Trust Meeting shall not be earlier than the close of business on the
second Business Day prior to such meeting, and of the method for revoking
or amending such instructions.
|
For
the purpose of determining Beneficiary Votes to which a Beneficiary is entitled
in respect of any Trust Meeting or Trust Consent, the number of Exchangeable
Securities owned of record by the Beneficiary shall be determined at the close
of business on the record date established by Enerplus or by applicable law for
purposes of determining Unitholders entitled to vote at such Trust Meeting or to
give written consent in connection with such Trust Consent. Enerplus
shall notify the Trustee of any decision of the trustee of Enerplus with respect
to the calling of any Trust Meeting or the seeking of any Trust Consent and
shall provide all necessary information and materials to the Trustee in each
case promptly and in any event in sufficient time to enable the Trustee to
perform its obligations contemplated by this Section 4.3.
The
materials referred to in this Section 4.3 are to be provided to the Trustee by
Enerplus and the materials referred to in Sections 4.3(c), 4.3(e) and 4.3(f)
shall be subject to reasonable comment by the Trustee in a timely
manner. Enerplus shall ensure that the materials to be provided to
the Trustee are provided in sufficient time to permit the Trustee to comment as
aforesaid and to send all materials to each Beneficiary at the same time as such
materials are first sent to holders of Enerplus Units. Enerplus
agrees not to communicate with holders of Enerplus Units with respect to the
materials referred to in this Section 4.3 otherwise than by mail unless such
method of communication is also reasonably available to the Trustee for
communication with the Beneficiaries. Notwithstanding the foregoing,
Enerplus may at its option exercise the duties of the Trustee to deliver copies
of all materials to each Beneficiary as required by this Section 4.3 so long as
in each case Enerplus delivers a certificate to the Trustee stating that
Enerplus has undertaken to perform the obligations set forth in this Section
4.3.
|
4.4
|
Copies
of Unitholder Information
|
Enerplus
will deliver to the Trustee copies of all proxy materials (including notices of
Trust Meetings but excluding proxies to vote Enerplus Units), information
statements, reports (including all interim and annual financial statements) and
other written communications that, in each case, are to be distributed from time
to time to Unitholders in sufficient quantities and in sufficient time so as to
enable the Trustee to send those materials to each Beneficiary, to the extent
possible, at the same time as such materials are first sent to
Unitholders. The Trustee will mail or otherwise send to each
Beneficiary, at the expense of Enerplus, copies of all such materials (and all
materials specifically directed to the Beneficiaries or to the Trustee for the
benefit of the Beneficiaries by Enerplus) received by the Trustee from Enerplus,
to the extent possible, at the same time as such materials are sent to
Unitholders. The Trustee will make copies of all such materials
available for inspection by any Beneficiary at the Trustee's principal office in
Calgary, Alberta. Notwithstanding the foregoing, Enerplus at its
option may exercise the duties of the Trustee to deliver copies of all materials
to each Beneficiary as required by this Section 4.4 so long as in each case
Enerplus delivers a certificate to the Trustee stating that Enerplus has
undertaken to perform the obligations set forth in this Section
4.4.
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|
4.5
|
Other
Materials
|
As
soon as reasonably practicable after receipt by Enerplus or holders of Enerplus
Units (if such receipt is known by Enerplus) of any materials sent or given by
or on behalf of a third party to holders of Enerplus Units generally, including
dissident proxy and information circulars (and related information and material)
and tender, exchange and take-over bid offer circulars (and related information
and material), Enerplus shall use its reasonable best efforts to obtain and
deliver to the Trustee copies thereof in sufficient quantities so as to enable
the Trustee to forward such materials (unless the same has been provided
directly to Beneficiaries by such third party) to each Beneficiary as soon as
possible thereafter. As soon as reasonably practicable after receipt
thereof, the Trustee will mail or otherwise send to each Beneficiary, at the
expense of Enerplus, copies of all such materials received by the Trustee from
Enerplus. The Trustee will also make available for inspection by any
Beneficiary at the Trustee's principal office in Calgary, Alberta, copies of all
such materials. Notwithstanding the foregoing, Enerplus at its option
may exercise the duties of the Trustee to deliver copies of all such materials
to each Beneficiary as required by this Section 4.5 so long as in each case
Enerplus delivers a certificate to the Trustee stating that Enerplus has
undertaken to perform the obligations set forth in this Section
4.5.
|
4.6
|
List
of Persons Entitled to Vote
|
EELP
shall, (a) prior to each annual and/or special Trust Meeting or the seeking of
any Trust Consent and (b) forthwith upon each request made at any time by the
Trustee in writing, prepare or cause to be prepared a list (a "List") of the names and
addresses of the Beneficiaries arranged in alphabetical order and showing the
number of Exchangeable Securities issued by it held of record by each such
Beneficiary, in each case at the close of business on the date specified by the
Trustee in such request or, in the case of a List prepared in connection with a
Trust Meeting or a Trust Consent, at the close of business on the record date
established by Enerplus or pursuant to applicable law for determining the
holders of Enerplus Units entitled to receive notice of and/or to vote at such
Trust Meeting or to give consent in connection with such Trust
Consent. Each such List shall be delivered to the Trustee promptly
after receipt by EELP of such request or the record date for such meeting or
seeking of consent, as the case may be, and in any event within sufficient time
as to permit the Trustee to perform its obligations under this
Agreement. Enerplus agrees to give EELP notice (with a copy to the
Trustee) of the calling of any Trust Meeting or the seeking of any Trust Consent
by Enerplus or its management, together with the record dates therefor,
sufficiently prior to the date of the calling of such meeting or seeking of such
consent so as to enable EELP to perform its obligations under this Section
4.6.
|
4.7
|
Entitlement
to Direct Votes
|
Any
Beneficiary named in a List prepared in connection with any Trust Meeting or
Trust Consent will be entitled (a) to instruct the Trustee in the manner
described in Section 4.2 with respect to the exercise of the Beneficiary Votes
to which such Beneficiary is entitled or (b) to attend such meeting and
personally exercise thereat (or to personally exercise with respect to any Trust
Consent), as the proxy of the Trustee, the Beneficiary Votes to which such
Beneficiary is entitled.
|
4.8
|
Voting
by the Trustee and Attendance of Trustee Representative at
Meeting
|
|
(a)
|
In
connection with each Trust Meeting and Trust Consent, the Trustee shall
exercise, either in person or by proxy, in accordance with the
instructions received from a Beneficiary pursuant to Section 4.2, the
Beneficiary Votes as to which such Beneficiary is entitled to direct the
vote (or any lesser number thereof as may be set forth in the
instructions); provided, however, that such written instructions are
received by the Trustee from the Beneficiary prior to the time and date
fixed by the Trustee for receipt of such instruction in the notice given
by the Trustee to the Beneficiary pursuant to Section
4.3.
|
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|
(b)
|
Subject
to receipt of instructions contemplated by Section 4.3(f), the
Trustee shall cause a representative who is empowered by it to sign and
deliver, on behalf of the Trustee, proxies for Voting Rights to attend
each Trust Meeting. Upon submission by a Beneficiary (or its
designee) of identification satisfactory to the Trustee's representative,
and at the Beneficiary's request, such representative shall sign and
deliver to such Beneficiary (or its designee) a proxy to exercise
personally the Beneficiary Votes as to which such Beneficiary is otherwise
entitled hereunder to direct the vote, if such Beneficiary either (i) has
not previously given the Trustee instructions pursuant to Section 4.2 in
respect of such meeting or (ii) submits to such representative written
revocation of any such previous instructions. At such meeting,
upon receipt of a proxy from the Trustee's representative, the Beneficiary
exercising such Beneficiary Votes shall have the same rights as the
Trustee to speak at the meeting in respect of any matter, question,
proposal or proposition, to vote by way of ballot at the meeting in
respect of any matter, question, proposal or proposition, and to vote at
such meeting by way of a show of hands in respect of any matter, question
or proposition.
|
|
4.9
|
Distribution
of Written Materials
|
Any
written materials distributed by or on behalf of the Trustee pursuant to this
Agreement shall be sent by mail (or otherwise communicated in the same manner as
Enerplus utilizes in communications to holders of Enerplus Units, subject to
applicable regulatory requirements and provided such manner of communication is
reasonably available to the Trustee) to each Beneficiary at its address as shown
on the books of EELP. Enerplus agrees not to communicate with holders
of Enerplus Units with respect to such written material otherwise than by mail
unless such method of communication is also reasonably available to the Trustee
for communication with the Beneficiaries. EELP shall provide or cause
to be provided to the Trustee for purposes of communication, on a timely basis
and without charge or other expense:
|
(a)
|
a
current List; and
|
|
(b)
|
upon
the request of the Trustee, mailing labels to enable the Trustee to carry
out its duties under this
Agreement.
|
EELP's
obligations under this Section 4.9 shall be deemed satisfied to the extent
Enerplus exercises its option to perform the duties of the Trustee to deliver
copies of materials to each Beneficiary and EELP provides the required
information and materials to Enerplus.
|
4.10
|
Termination
of Voting Rights
|
Except
as otherwise provided herein or in the Exchangeable Securities Provisions, all
of the rights of a Beneficiary with respect to the Beneficiary Votes exercisable
in respect of the Exchangeable Securities held by such Beneficiary, including
the right to instruct the Trustee as to the voting of or to vote personally such
Beneficiary Votes, shall be deemed to be surrendered by the Beneficiary and such
Beneficiary Votes and the Voting Rights represented thereby shall cease and be
terminated immediately, upon:
|
(a)
|
the
delivery by such Beneficiary to the Trustee of the certificates
representing such Exchangeable Securities in connection with the exercise
by the Beneficiary of the Exchange Right (unless Enerplus shall not have
delivered the Class B Unit Consideration deliverable in exchange therefor
to the Trustee for delivery to the
Beneficiary);
|
|
(b)
|
the
occurrence of the automatic exchange of Exchangeable Securities for
Enerplus Units, as specified in Article 5 (unless Enerplus shall not have
delivered the Class B Unit Consideration deliverable in exchange therefor
to the Trustee for delivery to the
Beneficiary);
|
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-
|
(c)
|
the
retraction or redemption of Exchangeable Securities pursuant to Article 6
or Article 7 of the Exchangeable Securities Provisions, or upon the
effective date of the liquidation, dissolution or winding-up of EELP
pursuant to Article 5 of the Exchangeable Securities
Provisions;
|
|
(d)
|
the
automatic redemption of Exchangeable Securities pursuant to Article 8 of
the Exchangeable Securities
Provisions;
|
|
(e)
|
the
purchase of Exchangeable Securities from the holder thereof by EELP;
or
|
|
(f)
|
the
purchase of Exchangeable Securities from the holder thereof pursuant to
the Liquidation Call Right pursuant to Article 10 of the Exchangeable
Securities Provisions.
|
ARTICLE 5
EXCHANGE
RIGHT AND AUTOMATIC EXCHANGE
|
5.1
|
Grant
and Ownership of the Exchange Right
|
Enerplus
hereby grants to the Trustee as trustee for and on behalf of, and for the use
and benefit of, the Beneficiaries, the right (the "Exchange Right"), upon the
occurrence and during the continuance of an Insolvency Event, to require
Enerplus to purchase from each or any Beneficiary all or any part of the
Exchangeable Securities held by such Beneficiary, and the Automatic Exchange
Rights, all in accordance with the provisions of this
Agreement. Enerplus hereby acknowledges receipt from the Trustee as
trustee for and on behalf of the Beneficiaries of good and valuable
consideration (and the adequacy thereof) for the grant of the Exchange Right and
the Automatic Exchange Rights by Enerplus to the Trustee. During the
term of the Trust and subject to the terms and conditions of this Agreement, the
Trustee shall possess and be vested with full legal ownership of the Exchange
Right and the Automatic Exchange Rights and shall be entitled to exercise all of
the rights and powers of an owner with respect to the Exchange Right and the
Automatic Exchange Rights, provided that the Trustee shall:
|
(a)
|
hold
the Exchange Right and the Automatic Exchange Rights and the legal title
thereto as trustee solely for the use and benefit of the Beneficiaries in
accordance with the provisions of this Agreement;
and
|
|
(b)
|
except
as specifically authorized by this Agreement, have no power or authority
to exercise or otherwise deal in or with the Exchange Right or the
Automatic Exchange Rights, and the Trustee shall not exercise any such
rights for any purpose other than the purposes for which the Trust is
created pursuant to this Agreement.
|
|
5.2
|
Legended
Share Certificates
|
EELP
shall cause each certificate representing Exchangeable Securities to bear an
appropriate legend notifying the Beneficiaries of:
|
(a)
|
their
right to instruct the Trustee with respect to the exercise of the Exchange
Right in respect of the Exchangeable Securities held by a Beneficiary;
and
|
|
(b)
|
the
Automatic Exchange Rights.
|
|
5.3
|
General
Exercise of Exchange Right
|
The
Exchange Right shall be and remain vested in and exercisable by the
Trustee. Subject to Section 6.15, the Trustee shall exercise the
Exchange Right only on the basis of instructions received pursuant to this
Article 5 from Beneficiaries entitled to instruct the Trustee as to the exercise
thereof. To the extent that no instructions are received from a
Beneficiary with respect to the Exchange Right, the Trustee shall not exercise
or permit the exercise of the Exchange Right.
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10 -
|
5.4
|
Purchase
Price
|
The
purchase price payable by Enerplus for each Exchangeable Security to be
purchased by Enerplus under the Exchange Right shall be: (a) an amount per
Exchangeable Security equal to the Class B Unit Price on the last Business Day
prior to the day of closing of the purchase and sale of such Exchangeable
Securities under the Exchange Right; and (b) the assumption by Enerplus of any
EELP Loan Indebtedness in respect of such Exchangeable Security. In
connection with each exercise of the Exchange Right, Enerplus shall provide to
the Trustee an Officer's Certificate setting forth the calculation of the Class
B Unit Price for each Exchangeable Security. The Class B Unit Price
for each such Exchangeable Security so purchased may be satisfied only by
Enerplus delivering or causing to be delivered to the Trustee, on behalf of the
relevant Beneficiary, the Class B Unit Consideration representing the total
Class B Unit Price. Upon payment by Enerplus of such purchase price
to the Trustee for the benefit of the Beneficiary, the relevant Beneficiary
shall cease to have any right to be paid any amount in respect of declared and
unpaid loans or distributions on each such Exchangeable Security by
EELP.
|
5.5
|
Exercise
Instructions
|
Subject
to the terms and conditions herein set forth, a Beneficiary shall be entitled,
upon the occurrence and during the continuance of an Insolvency Event, to
instruct the Trustee to exercise the Exchange Right with respect to all or any
part of the Exchangeable Securities registered in the name of such Beneficiary
on the books of EELP. To cause the exercise of the Exchange Right by
the Trustee, the Beneficiary shall deliver to the Trustee, in person or by
certified or registered mail, at its principal office in Calgary, Alberta or at
such other places in Canada as the Trustee may from time to time designate by
written notice to the Beneficiaries, the certificates representing the
Exchangeable Securities which such Beneficiary desires Enerplus to purchase,
duly endorsed in blank for transfer, and accompanied by such other documents and
instruments as may be required to effect a transfer of Exchangeable Securities
under the Limited Partnership Agreement and such additional documents and
instruments as the Trustee, EELP and Enerplus may reasonably require together
with: (a) a duly completed form of notice of exercise of the Exchange Right,
contained on the reverse of or attached to the Exchangeable Securities
certificates, stating: (i) that the Beneficiary thereby instructs the Trustee to
exercise the Exchange Right so as to require Enerplus to purchase from the
Beneficiary the number of Exchangeable Securities specified therein; (ii) that
such Beneficiary has good title to and owns all such Exchangeable Securities to
be acquired by Enerplus free and clear of all liens, claims, security interests
and encumbrances; (iii) the names in which the certificates representing
Enerplus Units issuable in connection with the exercise of the Exchange Right
are to be issued; and (iv) the names and addresses of the persons to whom such
new certificates should be delivered; and (b) payment (or evidence satisfactory
to the Trustee, EELP and Enerplus of payment) of the taxes (if any) payable as
contemplated by Section 5.8. If only a part of the Exchangeable
Securities represented by any certificate or certificates delivered to the
Trustee are to be purchased by Enerplus under the Exchange Right, a new
certificate for the balance of such Exchangeable Securities shall be issued to
the holder at the expense of EELP.
|
5.6
|
Delivery
of Enerplus Units; Effect of
Exercise
|
Promptly
after the receipt by the Trustee of the certificates representing the
Exchangeable Securities which the Beneficiary desires Enerplus to purchase under
the Exchange Right, together with such documents and instruments of transfer and
a duly completed form of notice of exercise of the Exchange Right (and payment
of taxes, if any payable as contemplated by Section 5.8 or evidence thereof),
duly endorsed for transfer to Enerplus, the Trustee shall notify Enerplus and
EELP, of its receipt of the same, which notice to Enerplus and EELP shall
constitute exercise of the Exchange Right by the Trustee on behalf of the
Beneficiary in respect of such Exchangeable Securities, and Enerplus shall
promptly thereafter deliver or cause to be delivered to the Trustee, for
delivery to the Beneficiary in respect of such Exchangeable Securities (or to
such other persons, if any, properly designated by such Beneficiary) the Class B
Unit Consideration deliverable in connection with the exercise of the Exchange
Right; provided, however, that no such delivery shall be made unless and until
the Beneficiary requesting the same shall have paid (or provided evidence
satisfactory to the Trustee, EELP and Enerplus of the payment of) the taxes (if
any) payable as contemplated by Section 5.8. Immediately upon the
giving of notice by the Trustee to Enerplus and EELP, of the exercise of the
Exchange Right, as provided in this Section 5.6, the closing of the transaction
of purchase and sale contemplated by the Exchange Right shall be deemed to have
occurred, and the Beneficiary of such Exchangeable Securities shall be deemed to
have transferred to Enerplus all of such Beneficiary's right, title and interest
in and to such Exchangeable Securities and in the related interest in the
Trust
-
11 -
Estate
and shall cease to be a holder of such Exchangeable Securities and shall not be
entitled to exercise any of the rights of a holder in respect thereof, other
than the right to receive his proportionate part of the total purchase price
therefor, unless such Class B Unit Consideration is not delivered by Enerplus to
the Trustee for delivery to such Beneficiary (or to such other person, if any,
properly designated by such Beneficiary) within five Business Days of the date
of the giving of such notice by the Trustee, in which case the rights of the
Beneficiary shall remain unaffected until such Class B Unit Consideration is
delivered by Enerplus and any cheque included therein is paid. Upon
delivery of such Class B Unit Consideration by Enerplus to the Trustee, the
Trustee shall deliver such Class B Unit Consideration to such Beneficiary (or to
such other person, if any, properly designated by such
Beneficiary). Concurrently with such Beneficiary ceasing to be a
holder of Exchangeable Securities, the Beneficiary (or such other person
properly designated by such Beneficiary) shall be considered and deemed for all
purposes to be the holder of the Enerplus Units delivered to it pursuant to the
Exchange Right.
Notwithstanding
anything contained in this Agreement or the Limited Partnership Agreement
(including the Exchangeable Securities Provisions), upon the exercise of the
Exchange Right by the Trustee on behalf of the Beneficiary, all obligations
under or pertaining to EELP Loan Indebtedness of the Beneficiary in respect of
each Exchangeable Security in respect of which such Exchange Right is exercised
shall be, and be deemed to be, assumed by Enerplus and EELP shall release, and
be deemed to release, such Beneficiary from and in respect of all such
obligations without further act or formality.
|
5.7
|
Exercise
of Exchange Right Subsequent to
Retraction
|
In
the event that a Beneficiary has exercised its right under Article 6 of the
Exchangeable Securities Provisions to require EELP to redeem any or all of the
Exchangeable Securities held by the Beneficiary (the "Retracted Securities") and is
notified by EELP pursuant to Section 6.5 of the Exchangeable Securities
Provisions that EELP will not be permitted as a result of applicable law to
redeem all such Retracted Securities, and provided that the Beneficiary has not
revoked the retraction request delivered by the Beneficiary to EELP pursuant to
Section 6.6 of the Exchangeable Securities Provisions, and provided further that
the Trustee has received written notice of same from EELP or Enerplus, the
retraction request will constitute and will be deemed to constitute notice from
the Beneficiary to the Trustee instructing the Trustee to exercise the Exchange
Right with respect to those Retracted Securities that EELP is unable to
redeem. In any such event, EELP hereby agrees with the Trustee and in
favour of the Beneficiary promptly to forward or cause to be forwarded to the
Trustee all relevant materials delivered by the Beneficiary to EELP or to the
transfer agent of the Exchangeable Securities (including a copy of the
retraction request delivered pursuant to Section 6.1 of the Exchangeable
Securities Provisions) in connection with such proposed redemption of the
Retracted Securities and the Trustee will, by providing notice to EELP and
Enerplus, thereupon exercise the Exchange Right with respect to the Retracted
Securities that EELP is not permitted to redeem and will require Enerplus to
purchase such Retracted Securities in accordance with the provisions of this
Article 5.
|
5.8
|
Stamp
or Other Transfer Taxes
|
Upon
any sale of Exchangeable Securities to Enerplus pursuant to the Exchange Right
or the Automatic Exchange Rights, the certificate or certificates representing
Enerplus Units to be delivered in connection with the payment of the purchase
price therefor shall be issued in the name of the Beneficiary in respect of the
Exchangeable Securities so sold or in such names as such Beneficiary may
otherwise direct in writing without charge to the holder of the Exchangeable
Securities so sold; provided, however, that such Beneficiary shall pay (and none
of Enerplus, EELP or the Trustee shall be required to pay) any documentary,
stamp, transfer or other taxes that may be payable in respect of any transfer
involved in the issuance or delivery of such shares to a person other than such
Beneficiary or evidence to the satisfaction of Enerplus and EELP that such
taxes, if any, have been paid.
|
5.9
|
Notice
of Insolvency Event
|
As
soon as practicable following the occurrence of an Insolvency Event or any event
that with the giving of notice or the passage of time or both would be an
Insolvency Event, EELP and Enerplus shall give written notice thereof to the
Trustee. As soon as practicable following the receipt of notice from
EELP or Enerplus of the occurrence of an Insolvency Event, or upon the Trustee
becoming aware of an Insolvency Event, the Trustee will mail to each
Beneficiary, at the expense of Enerplus (such funds to be received in advance),
a notice of such Insolvency Event in the form provided by Enerplus, which notice
shall contain a brief statement of the rights of the Beneficiaries with respect
to the Exchange Right.
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12 -
|
5.10
|
Qualification
of Enerplus Units
|
Enerplus
covenants that if any Enerplus Units issuable pursuant to the Exchange Right or
the Automatic Exchange Rights require registration or qualification with or
approval of or the filing of any document, including any registration statement,
prospectus or similar document, or the taking of any proceeding with or the
obtaining of any order, ruling or consent from any governmental authority or the
fulfilment of any other Canadian federal, provincial or territorial legal
requirement before such Enerplus Units may be issued and delivered by Enerplus
to the initial holder thereof or in order that such Enerplus Units may be freely
traded thereafter (other than any restrictions of general application on
transfer by reason of a holder being a "control person" of Enerplus for purposes
of Canadian provincial securities law), Enerplus will in good faith use its
reasonable best efforts to take all such actions and do all such things as are
necessary or desirable to cause such Enerplus Units to be and remain duly
registered, qualified or approved under Canadian law. Enerplus will
use its reasonable best efforts and in good faith expeditiously take all such
actions and do all such things as are reasonably necessary or desirable to cause
all the Enerplus Units to be delivered pursuant to the Exchange Right or the
Automatic Exchange Rights to be listed, quoted or posted for trading on all
stock exchanges and quotation systems on which outstanding Enerplus Units are
listed, quoted or posted for trading at such time.
|
5.11
|
Enerplus
Units
|
Enerplus
hereby represents, warrants and covenants that the Enerplus Units issuable to
Beneficiaries as described herein will be duly authorized and validly issued,
fully paid and non-assessable and shall be free and clear of any lien, claim or
encumbrance.
|
5.12
|
Automatic
Exchange on Liquidation of Enerplus
|
|
(a)
|
Enerplus
will give the Trustee written notice of each of the following events at
the time set forth below:
|
|
|
(i)
|
in
the event of any determination by the trustee of Enerplus to institute
voluntary liquidation, dissolution or winding-up proceedings with respect
to Enerplus or to effect any other distribution of assets of Enerplus
among its Enerplus Unitholders for the purpose of winding up its affairs,
at least 60 days prior to the proposed effective date of such liquidation,
dissolution, winding-up or other distribution;
and
|
|
|
(ii)
|
promptly
following the earlier of (A) receipt by Enerplus of notice of, and (B)
Enerplus otherwise becoming aware of, any threatened or instituted claim,
suit, petition or other proceedings with respect to the involuntary
liquidation, dissolution or winding-up of Enerplus or to effect any other
distribution of assets of Enerplus among its Enerplus Unitholders for the
purpose of winding up its affairs, in each case where Enerplus has failed
to contest in good faith any such proceeding commenced in respect of
Enerplus within 30 days of becoming aware
thereof.
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|
(b)
|
Promptly
following receipt by the Trustee from Enerplus of notice of any event (a
"Liquidation
Event") contemplated by Section 5.12(a) above, the Trustee will
give notice thereof to the Beneficiaries. Such notice shall be
provided to the Trustee by Enerplus and shall include a brief description
of rights of the Beneficiaries with respect to the Automatic Exchange
Rights provided for in Section
5.12(c).
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|
(c)
|
In
order that the Beneficiaries will be able to participate on a pro rata basis (after
giving effect to the 0.425 exchange ratio) with the holders of Enerplus
Units in the distribution of assets of Enerplus in connection with a
Liquidation Event, immediately prior to the effective time (the "Liquidation Event Effective
Time") of a Liquidation Event all of the then outstanding
Exchangeable Securities shall be automatically exchanged for Enerplus
Units. To effect such automatic exchange, Enerplus shall
purchase each Exchangeable Security outstanding immediately prior to the
Liquidation Event Effective Time and held by Beneficiaries, and each
Beneficiary shall sell the Exchangeable Securities held by such
Beneficiary at such time, for a purchase price per Exchangeable Security
equal to the Class B Unit Price applicable at that
time. Enerplus shall provide the Trustee with an Officer's
Certificate in connection with any automatic exchange setting forth the
calculation of the Class B Unit Price for each Exchangeable
Security.
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(d)
|
The
closing of the transaction of purchase and sale contemplated by the
automatic exchange of Exchangeable Securities for Enerplus Units shall be
deemed to have occurred immediately prior to the Liquidation Event
Effective Time, and each Beneficiary shall be deemed to have transferred
to Enerplus all of the Beneficiary's right, title and interest in and to
such Beneficiary's Exchangeable Securities and the related interest in the
Trust Estate. Any right of each such Beneficiary to receive
loans from EELP shall be deemed to be satisfied and discharged and each
such Beneficiary shall cease to be a holder of such Exchangeable
Securities and Enerplus shall deliver to the Beneficiary the Class B Unit
Consideration deliverable upon the automatic exchange of Exchangeable
Securities. Concurrently with such Beneficiary ceasing to be a
holder of Exchangeable Securities, the Beneficiary shall be considered and
deemed for all purposes to be the holder of the Enerplus Units issued
pursuant to the automatic exchange of Exchangeable Securities for Enerplus
Units and the certificates held by the Beneficiary previously representing
the Exchangeable Securities exchanged by the Beneficiary with Enerplus
pursuant to such automatic exchange shall thereafter be deemed to
represent Enerplus Units issued to the Beneficiary by Enerplus pursuant to
such automatic exchange. Upon the request of a Beneficiary and
the surrender by the Beneficiary of Exchangeable Securities certificates
deemed to represent Enerplus Units, duly endorsed in blank and accompanied
by such instruments of transfer as Enerplus may reasonably require,
Enerplus shall deliver or cause to be delivered to the Beneficiary
certificates representing Enerplus Units of which the Beneficiary is the
holder.
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|
5.13
|
Withholding
Rights
|
Each
of Enerplus, EELP and the Trustee shall be entitled (without duplication) to
deduct and withhold from any consideration otherwise payable under this
Agreement to any holder of Exchangeable Securities or Enerplus Units such
amounts as Enerplus, EELP or the Trustee is required to deduct and withhold with
respect to such payment under the Income Tax Act (Canada) or
any provision of federal, provincial, state, local or foreign tax law, in each
case as amended or succeeded. The Trustee may act on the advice of
counsel with respect to such matters. To the extent that amounts are
so withheld, such withheld amounts shall be treated for all purposes as having
been paid to the holder of the securities in respect of which such deduction and
withholding was made, provided that such withheld amounts are actually remitted
to the appropriate taxing authority. To the extent that the amount so
required to be deducted or withheld from any payment to a holder exceeds the
cash portion of the consideration otherwise payable to the holder, Enerplus,
EELP and the Trustee are hereby authorized to sell or otherwise dispose of such
portion of the consideration as is necessary to provide sufficient funds to
Enerplus, EELP or the Trustee, as the case may be, to enable it to comply with
such deduction or withholding requirement and Enerplus, EELP or the Trustee
shall notify the holder thereof and remit to such holder any unapplied balance
of the net proceeds of such sale.
ARTICLE 6
CONCERNING
THE TRUSTEE
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6.1
|
Powers
and Duties of the Trustee
|
The
rights, powers, duties and authorities of the Trustee under this Agreement, in
its capacity as trustee of the Trust, shall include:
|
(a)
|
receipt
and deposit of the Enerplus Special Voting Right from Enerplus as trustee
for and on behalf of the Beneficiaries in accordance with the provisions
of this Agreement;
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|
(b)
|
granting
proxies and distributing materials to Beneficiaries as provided in this
Agreement;
|
|
(c)
|
casting
and exercising the Beneficiary Votes in accordance with the provisions of
this Agreement;
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14 -
|
(d)
|
receiving
the grant of the Exchange Right and the Automatic Exchange Rights from
Enerplus as trustee for and on behalf of the Beneficiaries in accordance
with the provisions of this
Agreement;
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|
(e)
|
exercising
the Exchange Right and enforcing the benefit of the Automatic Exchange
Rights, in each case in accordance with the provisions of this Agreement,
and in connection therewith receiving from Beneficiaries Exchangeable
Securities and other requisite documents and distributing to such
Beneficiaries Enerplus Units, cheques and other property, if any, to which
such Beneficiaries are entitled upon the exercise of the Exchange Right or
pursuant to the Automatic Exchange Rights, as the case may
be;
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|
(f)
|
holding
title to the Trust Estate;
|
|
(g)
|
investing
any moneys forming, from time to time, a part of the Trust Estate as
provided in this Agreement;
|
|
(h)
|
taking
action on its own initiative or at the direction of a Beneficiary or
Beneficiaries to enforce the obligations of Enerplus and EELP under this
Agreement; and
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|
(i)
|
taking
such other actions and doing such other things as are specifically
provided in this Agreement.
|
In
the exercise of such rights, powers, duties and authorities, the Trustee shall
have (and is granted) such incidental and additional rights, powers, duties and
authority not in conflict with any of the provisions of this Agreement as the
Trustee, acting in good faith and in the reasonable exercise of its discretion,
may deem necessary, appropriate or desirable to effect the purpose of the
Trust. Any exercise of such discretionary rights, powers, duties and
authorities by the Trustee shall be final, conclusive and binding upon all
persons.
The
Trustee in exercising its rights, powers, duties and authorities hereunder shall
act honestly and in good faith and with a view to the best interests of the
Beneficiaries and shall exercise the care, diligence and skill that a reasonably
prudent trustee would exercise in comparable circumstances.
The
Trustee shall not be bound to give notice or do or take any act, action or
proceeding by virtue of the powers conferred on it hereby unless and until it
shall be specifically required to do so under the terms hereof, nor shall the
Trustee be required to take any notice of, or to do, or to take any act, action
or proceeding as a result of any default or breach of any provision hereunder,
unless and until notified in writing of such default or breach, which notices
shall distinctly specify the default or breach desired to be brought to the
attention of the Trustee, and in the absence of such notice the Trustee may for
all purposes of this Agreement conclusively assume that no default or breach has
been made in the observance or performance of any of the representations,
warranties, covenants, agreements or conditions contained herein.
|
6.2
|
No
Conflict of Interest
|
Enerplus
and EELP acknowledge that the Trustee also serves as registrar and transfer
agent for Enerplus, as trustee of Enerplus pursuant to the Amended and Restated
Trust Indenture of Enerplus dated November 8, 2007, and is expected to become
the distribution agent in respect of Enerplus and the registrar, transfer agent
and distribution agent in respect of EELP (collectively, the "Related
Appointments"). The Trustee represents to Enerplus and EELP
that at the date of execution and delivery of this Agreement there exists no
material conflict of interest in the role of the Trustee as a fiduciary
hereunder and the role of the Trustee in any other capacity and is aware of no
potential conflicts of interest other than those that may arise in connection
with the Related Appointments. The Trustee shall, within 90 days
after it becomes aware that any material conflict of interest exists, including
in connection with any Related Appointments, either: (a) eliminate such material
conflict of interest; (b) resign from any of the Related Appointments so that a
material conflict of interest no longer exists; or (c) resign in the manner and
with the effect specified in Article 9. If, notwithstanding the
foregoing provisions of this Section 6.2, the Trustee has such a material
conflict of interest, the validity and enforceability of this Agreement shall
not be affected in any manner whatsoever by reason only of the existence of such
material conflict of interest. If the Trustee contravenes the
foregoing provision of this Section 6.2, any interested party may apply to the
Court for an order that the Trustee be replaced as the trustee
hereunder.
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15 -
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6.3
|
Dealings
with Transfer Agents, Registrars,
etc.
|
Each
of Enerplus and EELP irrevocably authorize the Trustee, from time to time,
to:
|
(a)
|
consult,
communicate and otherwise deal with the respective registrars and transfer
agents, and with any such subsequent registrar or transfer agent, of the
Exchangeable Securities and Enerplus Units;
and
|
|
(b)
|
requisition,
from time to time: (i) from any such registrar or transfer agent any
information readily available from the records maintained by it which the
Trustee may reasonably require for the discharge of its duties and
responsibilities under this Agreement; and (ii) from the transfer agent of
Enerplus Units, and any subsequent transfer agent of such Enerplus Units,
the Enerplus Unit certificates issuable upon the exercise from time to
time of the Exchange Right and pursuant to the Automatic Exchange
Rights.
|
Each
of Enerplus and EELP irrevocably authorize their respective registrars and
transfer agents to comply with all such requests. Enerplus covenants
that it will supply its transfer agent with duly executed Enerplus Unit
certificates for the purpose of completing the exercise from time to time of the
Exchange Right and the Automatic Exchange Rights.
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6.4
|
Books
and Records
|
The
Trustee shall keep available for inspection by Enerplus and EELP at the
Trustee's principal office in Calgary, Alberta correct and complete books and
records of account relating to the Trust created by this Agreement, including
all relevant data relating to mailings and instructions to and from
Beneficiaries and all transactions pursuant to the Exchange Right and the
Automatic Exchange Rights. On or before January 15 in every year, so
long as the Enerplus Special Voting Right is on deposit with the Trustee, the
Trustee shall transmit to Enerplus and EELP a brief report, dated as of the
preceding December 31, with respect to:
|
(a)
|
the
property and funds comprising the Trust Estate as of that
date;
|
|
(b)
|
the
number of exercises of the Exchange Right, if any, and the aggregate
number of Exchangeable Securities received by the Trustee on behalf of
Beneficiaries in consideration of the issuance by Enerplus of Enerplus
Units in connection with the Exchange Right, during the calendar year
ended on such December 31; and
|
|
(c)
|
any
action taken by the Trustee in the performance of its duties under this
Agreement which it had not previously reported and which, in the Trustee's
opinion, materially affects the Trust
Estate.
|
|
6.5
|
Indemnification
Prior to Certain Actions by the
Trustee
|
Subject
to Section 6.15, the Trustee shall exercise any or all of the rights, duties,
powers or authorities vested in it by this Agreement at the request, order or
direction of any Beneficiary upon such Beneficiary furnishing to the Trustee
reasonable funding, security or indemnity against the costs, expenses and
liabilities which may be incurred by the Trustee therein or thereby, provided
that no Beneficiary shall be obligated to furnish to the Trustee any such
security or indemnity in connection with the exercise by the Trustee of any of
its rights, duties, powers and authorities with respect to the Enerplus Special
Voting Right held by the Trustee pursuant to Article 4, with respect to the
Exchange Right pursuant to Article 5, and with respect to the Automatic Exchange
Rights pursuant to Article 5.
None
of the provisions contained in this Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
exercise of any of its rights, powers, duties, or authorities unless funded,
given security or indemnified as aforesaid.
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16 -
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6.6
|
Action
of Beneficiaries
|
No
Beneficiary shall have the right to institute any action, suit or proceeding or
to exercise any other remedy authorized by this Agreement for the purpose of
enforcing any of its rights or for the execution of any trust or power hereunder
unless the Beneficiary has requested the Trustee to take or institute such
action, suit or proceeding and furnished the Trustee with the funding, security
or indemnity required by Section 6.6 and the Trustee shall have failed to act
within a reasonable time thereafter. In such case, but not otherwise,
the Beneficiary shall be entitled to take proceedings in any court of competent
jurisdiction such as the Trustee might have taken; it being understood and
intended that no one or more Beneficiaries shall have any right in any manner
whatsoever to affect, disturb or prejudice the rights hereby created by any such
action, or to enforce any right hereunder or the Voting Rights, the Exchange
Rights or the Automatic Exchange Rights except subject to the conditions and in
the manner herein provided, and that all powers and trusts hereunder shall be
exercised and all proceedings at law shall be instituted, had and maintained by
the Trustee, except only as herein provided, and in any event for the equal
benefit of all Beneficiaries.
|
6.7
|
Reliance
Upon Declarations
|
The
Trustee shall not be considered to be in contravention of any of its rights,
powers, duties and authorities hereunder if, when required, it acts and relies
in good faith upon statutory declarations, certificates, opinions, Lists,
reports or other papers or documents furnished pursuant to the provisions hereof
or required by the Trustee to be furnished to it in the exercise of its rights,
powers, duties and authorities hereunder if such statutory declarations,
certificates, opinions, Lists, reports or other papers or documents comply with
the provisions of Section 6.9, if applicable, and with any other applicable
provisions of this Agreement.
|
6.8
|
Evidence
and Authority to the Trustee
|
Enerplus
and/or EELP shall furnish to the Trustee evidence of compliance with the
conditions provided for in this Agreement relating to any action or step
required or permitted to be taken by Enerplus and/or EELP or the Trustee under
this Agreement or as a result of any obligation imposed under this Agreement,
including in respect of the Voting Rights or the Exchange Right or the Automatic
Exchange Rights and the taking of any other action to be taken by the Trustee at
the request of or on the application of Enerplus and/or EELP, promptly if and
when:
|
(a)
|
such
evidence is required by any other section of this Agreement to be
furnished to the Trustee in accordance with the terms of this Section 6.9;
or
|
|
(b)
|
the
Trustee, in the exercise of its rights, powers, duties and authorities
under this Agreement, gives Enerplus and/or EELP written notice requiring
it to furnish such evidence in relation to any particular action or
obligation specified in such
notice.
|
Such
evidence shall consist of an Officer's Certificate of Enerplus and/or of the
General Partner on behalf of EELP or a statutory declaration or a certificate
made by persons entitled to sign an Officer's Certificate stating that any such
condition has been complied with in accordance with the terms of this
Agreement.
Whenever
such evidence relates to a matter other than the Voting Rights or the Exchange
Right or the Automatic Exchange Rights or the taking of any other action to be
taken by the Trustee at the request or on the application of Enerplus and/or
EELP, and except as otherwise specifically provided herein, such evidence may
consist of a report or opinion of any solicitor, attorney, auditor, accountant,
appraiser, valuer, engineer or other expert or any other person whose
qualifications give authority to a statement made by him, provided that if such
report or opinion is furnished by a director, officer or employee of the
administrator of Enerplus and/or of the General Partner on behalf of EELP, it
shall be in the form of an Officer's Certificate or a statutory
declaration.
Each
statutory declaration, Officer's Certificate, opinion or report furnished to the
Trustee as evidence of compliance with a condition provided for in this
Agreement shall include a statement by the person giving the
evidence:
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17 -
|
(a)
|
declaring
that such person has read and understands the provisions of this Agreement
relating to the condition in
question;
|
|
(b)
|
describing
the nature and scope of the examination or investigation upon which such
person based the statutory declaration, certificate, statement or opinion;
and
|
|
(c)
|
declaring
that such person has made such examination or investigation as such person
believes is necessary to enable such person to make the statements or give
the opinions contained or expressed
therein.
|
|
6.9
|
Experts,
Advisers and Agents
|
The
Trustee may:
|
(a)
|
in
relation to these presents act and rely on the opinion or advice of or
information obtained from any solicitor, attorney, auditor, accountant,
appraiser, valuer, engineer or other expert, whether retained by the
Trustee or by Enerplus and/or EELP, or otherwise, and may retain or employ
such assistants as may be necessary to the proper discharge of its powers
and duties and determination of its rights hereunder and may pay proper
and reasonable compensation for all such legal and other advice or
assistance as aforesaid; and
|
|
(b)
|
employ
such agents and other assistants as it may reasonably require for the
proper determination and discharge of its powers and duties hereunder, and
may pay reasonable remuneration for all services performed for it (and
shall be entitled to receive reasonable remuneration for all services
performed by it) in the discharge of the trusts hereof and compensation
for all disbursements, costs and expenses made or incurred by it in the
discharge of its duties hereunder and in the management of the
Trust.
|
|
6.10
|
Investment
of Moneys Held by the Trustee
|
The
Trustee may retain any cash balance held in connection with this Agreement and
may, but need not, hold the same in its deposit department or the deposit
department of one of its Affiliates; but the Trustee and its Affiliates shall
not be liable to account for any profit to EELP, or any other person or entity
other than at a rate, if any, established from time to time by the Trustee or
its Affiliates.
Upon
receipt of a direction from EELP, the Trustee shall invest any moneys held by it
in Authorized Investments in its name in accordance with such direction. Any
direction from EELP to the Trustee shall be in writing and shall be provided to
the Trustee no later than 9:00 a.m. E.S.T. on the day on which the investment is
to be made. Any such direction received by the Trustee after 9:00 a.m. E.S.T. or
received on a non-Business Day, shall be deemed to have been given prior to 9:00
a.m. E.S.T. next Business Day. For the purpose hereof, "Authorized Investments" means
short term interest bearing or discount debt obligations issued or guaranteed by
the Government of Canada or a Province or a Canadian chartered bank provided
that such obligation is rated at least R1 (middle) by DBRS Inc. or an equivalent
rating service.
In
the event that the Trustee does not receive a direction or only a partial
direction, the Trustee may hold cash balances constituting part or all of the
escrow fund and may, but need not, invest same in its deposit department or the
deposit department of a Canadian chartered bank; but the Trustee shall not be
liable to account for any profit to any parties to this Agreement or to any
person or entity other than at a rate, if any, established from time to time by
the Trustee.
|
6.11
|
Trustee
Not Required to Give Security
|
The
Trustee shall not be required to give any bond or security in respect of the
execution of the trusts, rights, duties, powers and authorities of this
Agreement or otherwise in respect of the premises.
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18 -
|
6.12
|
Trustee
Not Bound to Act on Request
|
Except
as in this Agreement otherwise specifically provided, the Trustee shall not be
bound to act in accordance with any direction or request of Enerplus and/or EELP
or of the directors thereof until a duly authenticated copy of the instrument or
resolution containing such direction or request shall have been delivered to the
Trustee, and the Trustee shall be empowered to act and rely upon any such copy
purporting to be authenticated and believed by the Trustee to be
genuine.
|
6.13
|
Authority
to Carry on Business
|
The
Trustee represents to Enerplus and EELP that at the date of execution and
delivery by it of this Agreement it is authorized to carry on the business of a
trust company in Canada. If, notwithstanding the provisions of this
Section 6.14, it ceases to be so authorized to carry on business, the validity
and enforceability of this Agreement and the Voting Rights, the Exchange Right
and the Automatic Exchange Rights shall not be affected in any manner whatsoever
by reason only of such event but the Trustee shall, within 90 days after ceasing
to be authorized to carry on the business of a trust company in Canada, either
become so authorized or resign in the manner and with the effect specified in
Article 9.
|
6.14
|
Conflicting
Claims
|
If
conflicting claims or demands are made or asserted with respect to any interest
of any Beneficiary in any Exchangeable Securities, including any disagreement
between the heirs, representatives, successors or assigns succeeding to all or
any part of the interest of any Beneficiary in any Exchangeable Securities,
resulting in conflicting claims or demands being made in connection with such
interest, then the Trustee shall be entitled, at its sole discretion, to refuse
to recognize or to comply with any such claims or demands. In so
refusing, the Trustee may elect not to exercise any Voting Rights, Exchange
Right or Automatic Exchange Rights subject to such conflicting claims or demands
and, in so doing, the Trustee shall not be or become liable to any person on
account of such election or its failure or refusal to comply with any such
conflicting claims or demands. The Trustee shall be entitled to
continue to refrain from acting and to refuse to act until:
|
(a)
|
the
rights of all adverse claimants with respect to the Voting Rights,
Exchange Right or Automatic Exchange Rights subject to such conflicting
claims or demands have been adjudicated by a final judgment of a court of
competent jurisdiction and all rights of appeal have expired;
or
|
|
(b)
|
all
differences with respect to the Voting Rights, Exchange Right or Automatic
Exchange Rights subject to such conflicting claims or demands have been
conclusively settled by a valid written agreement binding on all such
adverse claimants, and the Trustee shall have been furnished with an
executed copy of such agreement certified to be in full force and
effect.
|
If
the Trustee elects to recognize any claim or comply with any demand made by any
such adverse claimant, it may in its discretion require such claimant to furnish
such surety bond or other security satisfactory to the Trustee as it shall deem
appropriate to fully indemnify it as between all conflicting claims or
demands.
|
6.15
|
Acceptance
of the Trust
|
The
Trustee hereby accepts the Trust created and provided for by and in this
Agreement and agrees to perform the same upon the terms and conditions herein
set forth and to hold all rights, privileges and benefits conferred hereby and
by law in trust for the various persons who shall from time to time be
Beneficiaries, subject to all the terms and conditions herein set
forth.
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19 -
|
6.16
|
Maintenance
of Office or Agency
|
Enerplus
will maintain in Calgary, Alberta an office or agency where certificates
representing Exchangeable Securities may be presented or surrendered for
exchange by Beneficiaries and where notices and demands to or upon Enerplus or
EELP in respect of the Exchangeable Securities may be
served. Enerplus 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 Enerplus shall fail to maintain any such
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be served at the
Corporate Trust Office of the Trustee, and Enerplus and EELP hereby appoint the
Trustee as their agent to receive all such presentations, surrenders, notices
and demands. Furthermore, copies of all Enerplus proxy materials will
be made available for inspection by any Beneficiary at such office or
agency.
ARTICLE 7
COMPENSATION
|
7.1
|
Fees
and Expenses of the Trustee
|
Enerplus
and EELP jointly and severally agree to pay the Trustee reasonable compensation
for all of the services rendered by it under this Agreement and will reimburse
the Trustee for all expenses reasonably incurred (including taxes other than
taxes based on the net income of the Trustee, fees paid to legal counsel and
other experts and advisors and travel expenses) and disbursements, including the
cost and expense of any suit or litigation of any character and any proceedings
before any governmental agency reasonably incurred by the Trustee in connection
with its duties under this Agreement; provided that Enerplus and EELP shall have
no obligation to reimburse the Trustee for any expenses or disbursements paid,
incurred or suffered by the Trustee in any suit or litigation in which the
Trustee is determined to have acted fraudulently or in bad faith or with gross
negligence, recklessness or wilful misconduct.
ARTICLE 8
INDEMNIFICATION
AND LIMITATION OF LIABILITY
|
8.1
|
Indemnification
of the Trustee
|
Each
of Enerplus and EELP jointly and severally agree to indemnify and hold harmless
the Trustee and each of its directors, officers, employees and shareholders and
each of its agents appointed and acting in accordance with this Agreement
(collectively, the "Indemnified
Parties") against all claims, losses, damages, costs reasonably incurred,
penalties, fines and reasonable expenses (including expenses of the Trustee's
legal counsel) which, without fraud, gross negligence or wilful misconduct on
the part of such Indemnified Party, may be paid, incurred or suffered by the
Indemnified Party by reason or as a result of the Trustee's acceptance or
administration of the Trust, its compliance with its duties set forth in this
Agreement, or any written or oral instruction delivered to the Trustee by
Enerplus or EELP pursuant hereto.
If
any of the Indemnified Parties intends to seek indemnification under this
indemnity from Enerplus or EELP, the Indemnified Party shall give Enerplus and
EELP notice of such claim for indemnification promptly following the receipt of
a written assertion of a claim, actual knowledge or information as to the
factual and legal basis of any claim which is subject to indemnification and,
where such claim results from the commencement of any claim or action by a third
party, promptly following receipt of written notice of such third party claim or
action. The failure of or delay by an Indemnified Party to so notify
Enerplus and EELP (as set forth above) shall not relieve Enerplus or EELP of its
indemnification obligations hereunder to the Indemnified Party, however the
liability which Enerplus and EELP have to the Indemnified Party pursuant to the
terms of this indemnity (and for which Enerplus and EELP will be obligated to
indemnify the Indemnified Party in respect of) shall be reduced to the extent
that any such delay in or failure to give notice as herein required prejudices
the defence of any such action, suit, proceeding, investigation or claim, or
otherwise results in any increase in the liability which Enerplus and EELP has
under this indemnity. Subject to (ii) below, Enerplus and EELP shall
be entitled to participate at their own expense in the defense and, if Enerplus
and EELP so elect at any time after receipt of such notice, either of them may
assume the defense of any suit brought to enforce any such claim. The
Trustee shall have the right to employ separate counsel in any such suit and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of the Trustee unless: (i) the employment of such
counsel has been authorized by Enerplus or EELP; or (ii) the named parties to
any such suit include both the Trustee and Enerplus or EELP and the Trustee
shall have been advised by counsel acceptable to Enerplus or EELP that there may
be one or more legal defenses available to the Trustee that are different from
or in addition to those available to Enerplus or EELP and that, in the judgment
of such counsel, would present a conflict of interest were a joint
representation to be undertaken (in which case Enerplus and EELP shall not have
the right to assume the defense of such suit on behalf of the Trustee but shall
be liable to pay the reasonable fees and expenses of counsel for the
Trustee). This indemnity shall survive the termination of this
Agreement and the resignation or removal of the Trustee.
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20 -
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8.2
|
Limitation
of Liability
|
The
Trustee shall not be held liable for any loss which may occur by reason of
depreciation of the value of any part of the Trust Estate or any loss incurred
on any investment of funds pursuant to this Agreement, except to the extent that
such loss is attributable to the fraud, negligence, recklessness, wilful
misconduct or bad faith on the part of the Trustee.
ARTICLE 9
CHANGE
OF TRUSTEE
|
9.1
|
Resignation
|
The
Trustee, or any trustee hereafter appointed, may at any time resign by giving
written notice of such resignation to Enerplus and EELP specifying the date on
which it desires to resign, provided that such notice shall not be given less
than 60 days before such desired resignation date unless Enerplus and EELP
otherwise agree and provided further that such resignation shall not take effect
until the date of the appointment of a successor trustee and the acceptance of
such appointment by the successor trustee. Upon receiving such notice
of resignation, Enerplus and EELP shall promptly appoint a successor trustee,
which shall be a corporation organized and existing under the laws of Canada or
any province thereof, by written instrument in duplicate, one copy of which
shall be delivered to the resigning trustee and one copy to the successor
trustee. Failing the appointment and acceptance of a successor
trustee, a successor trustee may be appointed by order of a court of competent
jurisdiction upon application of one or more of the parties to this
Agreement. If the retiring trustee is the party initiating an
application for the appointment of a successor trustee by order of a court of
competent jurisdiction, Enerplus and EELP shall be jointly and severally liable
to reimburse the retiring trustee for its legal costs and expenses in connection
with same.
|
9.2
|
Removal
|
The
Trustee, or any trustee hereafter appointed, may (provided a successor trustee
is appointed) be removed at any time on not less than 30 days' prior notice by
written instrument executed by Enerplus and EELP, in duplicate, one copy of
which shall be delivered to the trustee so removed and one copy to the successor
trustee.
|
9.3
|
Successor
Trustee
|
Any
successor trustee appointed as provided under this Agreement shall execute,
acknowledge and deliver to Enerplus and EELP and to its predecessor trustee an
instrument accepting such appointment. Thereupon the resignation or
removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations of its predecessor under this
Agreement, with the like effect as if originally named as trustee in this
Agreement. However, on the written request of Enerplus and EELP or of
the successor trustee, the trustee ceasing to act shall, upon payment of any
amounts then due it pursuant to the provisions of this Agreement, execute and
deliver an instrument transferring to such successor trustee all the rights and
powers of the trustee so ceasing to act. Upon the request of any such
successor trustee, Enerplus and EELP and such predecessor trustee shall execute
any and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers.
|
9.4
|
Notice
of Successor Trustee
|
Upon
acceptance of appointment by a successor trustee as provided herein, Enerplus
and EELP shall cause to be mailed notice of the succession of such trustee
hereunder to each Beneficiary specified in a List. If Enerplus or
EELP shall fail to cause such notice to be mailed within 10 days after
acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of Enerplus and EELP.
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21 -
ARTICLE 10
ENERPLUS
SUCCESSORS
|
10.1
|
Certain
Requirements in Respect of Combination,
etc.
|
Enerplus
shall not consummate any transaction (whether by way of reconstruction,
reorganization, consolidation, merger, transfer, sale, lease or otherwise)
whereby all or substantially all of its undertaking, property and assets would
become the property of any other person or, in the case of a merger, of the
continuing corporation resulting therefrom, but may do so if:
|
(a)
|
such
other person or continuing corporation (herein called the "Trust Successor"), by
operation of law, becomes, without more, bound by the terms and provisions
of this Agreement or, if not so bound, executes, prior to or
contemporaneously with the consummation of such transaction, a trust
agreement supplemental hereto and such other instruments (if any) as are
satisfactory to the Trustee, acting reasonably, and in the opinion of
legal counsel to the Trustee are reasonably necessary or advisable to
evidence the assumption by the Trust Successor of liability for all moneys
payable and property deliverable hereunder (including without limitation
one or more voting securities of such Trust Successor to allow
Beneficiaries to exercise voting rights in respect of the Trust Successor
substantially similar to those provided for in this Agreement in respect
of Enerplus) and the covenant of such Trust Successor to pay and deliver
or cause to be delivered the same and its agreement to observe and perform
all the covenants and obligations of Enerplus under this Agreement;
and
|
|
(b)
|
such
transaction shall be upon such terms and conditions as substantially to
preserve and not to impair in any material respect any of the rights,
duties, powers and authorities of the Trustee or of the Beneficiaries
hereunder.
|
|
10.2
|
Vesting
of Powers in Successor
|
Whenever
the conditions of Section 10.1 have been duly observed and performed, the
Trustee, Trust Successor and EELP shall, if required by Section 10.1, execute
and deliver the supplemental trust agreement provided for in Article 11 and
thereupon Trust Successor shall possess and from time to time may exercise each
and every right and power of Enerplus under this Agreement in the name of
Enerplus or otherwise and any act or proceeding by any provision of this
Agreement required to be done or performed by the trustee of Enerplus or any
officers of Enerplus may be done and performed with like force and effect by the
directors or officers of such Trust Successor.
|
10.3
|
Wholly-Owned
Subsidiaries
|
Nothing
herein shall be construed as preventing the merger of any wholly-owned direct or
indirect subsidiary of Enerplus with or into Enerplus or the winding-up,
liquidation or dissolution of any wholly-owned subsidiary of Enerplus provided
that all of the assets of such subsidiary are transferred to Enerplus or another
wholly-owned direct or indirect subsidiary of Enerplus.
|
10.4
|
Successorship
Transaction
|
Notwithstanding
the foregoing provisions of this Article 10, in the event of a Trust Control
Transaction:
|
(a)
|
which
does not result in an acceleration of the Redemption Date in accordance
with paragraph (ii) of the definition of "Redemption Date";
and
|
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22 -
|
(b)
|
in
which all or substantially all of the then outstanding Enerplus Units are
converted into or exchanged for securities or rights to receive such
securities (the "Other
Securities") of another entity (the "Other Entity") that,
immediately after such Trust Control Transaction, owns or controls,
directly or indirectly, Enerplus;
|
then
(i) all references herein to the "Enerplus" shall thereafter be
and be deemed to be references to "Other Entity" and all
references herein to "Enerplus
Units" shall thereafter be and be deemed to be references to "Other Securities" (with
appropriate adjustments, if any, as are required to result in a holder of
Exchangeable Securities on the exchange, redemption or retraction of such
Exchangeable Securities pursuant to the Exchangeable Securities Provisions or
exchange of such Exchangeable Securities pursuant to this Agreement immediately
subsequent to the Trust Control Transaction being entitled to receive that
number of Other Securities equal to the number of Other Securities such holder
of Exchangeable Securities would have received if the exchange, redemption or
retraction of such Exchangeable Securities pursuant to the Exchangeable
Securities Provisions, or exchange of such Exchangeable Securities pursuant to
this Agreement had occurred immediately prior to the Trust Control Transaction
and the Trust Control Transaction was completed) without any need to amend the
terms and conditions of this Agreement and without any further action required;
and (ii) Enerplus shall cause the Other Entity to deposit one or more voting
securities of such Other Entity to allow Beneficiaries to exercise voting rights
in respect of the Other Entity substantially similar to those provided for in
this Agreement.
ARTICLE 11
AMENDMENTS
AND SUPPLEMENTAL TRUST AGREEMENTS
|
11.1
|
Amendments,
Modifications, etc.
|
This
Agreement may not be amended or modified except by an agreement in writing
executed by Enerplus, EELP and the Trustee and approved by the Beneficiaries in
accordance with Section 11.1 of the Exchangeable Securities
Provisions.
|
11.2
|
Administrative
Amendments
|
Notwithstanding
the provisions of Section 11.1, the parties to this Agreement may in writing, at
any time and from time to time, without the approval of the Beneficiaries, amend
or modify this Agreement for the purposes of
|
(a)
|
adding
to the covenants of any or all parties hereto for the protection of the
Beneficiaries hereunder provided that the General Partner shall be of the
good faith opinion that such additions will not be prejudicial to the
rights or interests of the
Beneficiaries;
|
|
(b)
|
making
such amendments or modifications not inconsistent with this Agreement as
may be necessary or desirable with respect to matters or questions which,
in the good faith opinion of the General Partner and in the opinion of the
Trustee, having in mind the best interests of the Beneficiaries it may be
expedient to make, provided that the General Partner and the Trustee,
acting on the advice of counsel, shall be of the opinion that such
amendments and modifications will not be prejudicial to the interests of
the Beneficiaries; or
|
|
(c)
|
making
such changes or corrections which, on the advice of counsel to the General
Partner and the Trustee, are required for the purpose of curing or
correcting any ambiguity or defect or inconsistent provision or clerical
omission or mistake or manifest error, provided that the Trustee, acting
on the advice of counsel, and the General Partner shall be of the opinion
that such changes or corrections will not be prejudicial to the rights and
interests of the Beneficiaries.
|
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23 -
|
11.3
|
Meeting
to Consider Amendments
|
EELP,
at the request of Enerplus, agrees to call a meeting or meetings of the
Beneficiaries for the purpose of considering any proposed amendment or
modification requiring approval pursuant hereto. Any such meeting or
meetings shall be called and held in accordance with the Limited Partnership
Agreement, the Exchangeable Securities Provisions and all applicable laws;
provided that any such meeting shall only be called for a bona fide business purpose
and not for the principal purpose of causing a Redemption Date (as defined in
the Exchangeable Securities Provisions) to occur or transpire.
|
11.4
|
Changes
in Capital of Enerplus or EELP
|
At
all times after the occurrence of any event contemplated pursuant to Section 2.7
or 2.8 of the Support Agreement or otherwise, as a
result of which either Enerplus Units or the Exchangeable Securities or both are
in any way changed, this Agreement shall forthwith be deemed amended and
modified as necessary in order that it shall apply with full force and effect,
mutatis mutandis, to
all new securities into which Enerplus Units or the Exchangeable Securities or
both are so changed.
|
11.5
|
Execution
of Supplemental Trust Agreements
|
No
amendment to or modification or waiver of any of the provisions of this
Agreement otherwise permitted hereunder shall be effective unless made in
writing and signed by all of the parties hereto. From time to time
EELP, Enerplus and the Trustee may, subject to the provisions of these presents,
and they shall, when so directed by these presents, execute and deliver by their
proper officers, trust agreements or other instruments supplemental hereto,
which thereafter shall form part hereof, for any one or more of the following
purposes:
|
(a)
|
evidencing
the succession of Trust Successors and the covenants of and obligations
assumed by each such Trust Successor in accordance with the provisions of
Article 10 and the successors of any successor trustee in accordance with
the provisions of Article 9;
|
|
(b)
|
making
any additions to, deletions from or alterations of the provisions of this
Agreement or the Voting Rights, the Exchange Right or the Automatic
Exchange Rights which, in the opinion of the Trustee, will not be
prejudicial to the interests of the Beneficiaries or are, in the opinion
of counsel to the Trustee, necessary or advisable in order to incorporate,
reflect or comply with any legislation the provisions of which apply to
Enerplus, EELP, the Trustee or this Agreement;
and
|
|
(c)
|
for
any other purposes not inconsistent with the provisions of this Agreement,
including to make or evidence any amendment or modification to this
Agreement as contemplated hereby, provided that, in the opinion of the
Trustee relying on the advice of counsel where considered advisable, the
rights of the Trustee and Beneficiaries will not be prejudiced
thereby.
|
ARTICLE 12
TERMINATION
|
12.1
|
Term
|
The
Trust created by this Agreement shall continue until the earliest to occur of
the following events:
|
(a)
|
no
outstanding Exchangeable Securities are held by a
Beneficiary;
|
|
(b)
|
each
of Enerplus and EELP elects in writing to terminate the Trust and such
termination is approved by the Beneficiaries in accordance with Section
11.1 of the Exchangeable Securities Provisions;
and
|
|
(c)
|
July
1, 2050.
|
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24 -
|
12.2
|
Survival
of Agreement
|
This
Agreement shall survive any termination of Enerplus and shall continue until
there are no Exchangeable Securities outstanding held by a Beneficiary;
provided, however, that the provisions of Article 7 and Article 8 shall survive
any such termination of this Agreement.
ARTICLE 13
GENERAL
|
13.1
|
Assignment
|
No
party hereto may assign this Agreement or any of its rights, interests or
obligations under this Agreement (whether by operation of law or
otherwise).
|
13.2
|
Binding
Effect
|
Subject
to Section 13.1, this Agreement shall be binding upon, enure to the benefit of
and be enforceable by the parties hereto and their respective successors and
assigns and to the benefit of the Beneficiaries.
|
13.3
|
Notices
to Parties
|
Any
notice, consent, waiver, direction or other communication required or permitted
to be given under this Agreement by a party to any other party shall be in
writing and shall be delivered by hand delivery, facsimile transmission or
(provided that the mailing party does not know and should not reasonably have
known of any disruption or anticipated disruption of postal service which might
affect delivery of the mail) by registered mail (postage prepaid), addressed to
the party to whom the notice is to be given, at its specified address
herein. Any notice, consent, waiver, direction or other communication
aforesaid shall, if hand delivered or delivered by facsimile transmission, be
deemed to have been given and received on the date on which it was hand
delivered or delivered (based on facsimile confirmation) by facsimile
transmission (if prior to 4:30 pm (local time at the place of receipt) on a
Business Day and, if not, the next succeeding Business Day) and if sent by
registered mail be deemed to have been given and received on the fourth Business
Day at the point of delivery following the date on which it was so
sent. The specified address herein shall be, in the case
of:
|
(a)
|
if
to Enerplus, at:
|
c/o
EnerMark Inc.
The
Dome Tower, Suite 3000
000
- 0xx Xxxxxx X.X.
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention:
Vice President, General Counsel & Corporate Secretary
Fax
No.: (000) 000-0000
|
(b)
|
if
to EELP, at:
|
Enerplus
Exchangeable Limited Partnership
c/o
EnerMark Inc.
The
Dome Tower, Suite 3000
000
- 0xx Xxxxxx X.X.
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention:
Vice President, General Counsel & Corporate Secretary
Fax
No.: (000) 000-0000
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25 -
|
(c)
|
if
to the Trustee, at:
|
Computershare
Trust Company of Canada
Xxxxx
000, 000 - 0xx Xxxxxx X.X.
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention: Manager,
Corporate Trust
Fax
No.: (000)
000-0000
or
such other address as may be designated by any of the parties by notice to the
other parties given in accordance with this Section.
|
13.4
|
Notice
to Beneficiaries
|
Any
and all notices to be given and any documents to be sent to any Beneficiaries
may be given or sent to the address of such Beneficiary shown on the register of
holders of Exchangeable Securities in any manner permitted by the Limited
Partnership Agreement from time to time in force in respect of notices to
limited partners and shall be deemed to be received (if given or sent in such
manner) at the time specified in such Limited Partnership Agreement, the
provisions of which Limited Partnership Agreement shall apply mutatis mutandis
to notices or documents as aforesaid sent to such Beneficiaries.
|
13.5
|
Severability
|
If
any one or more of the provisions or parts thereof contained in this Agreement
should be or become invalid, illegal or unenforceable in any respect in any
jurisdiction, the remaining provisions or parts thereof contained herein shall
be and shall be conclusively deemed to be, as to such jurisdiction, severable
therefrom and:
|
(a)
|
the
validity, legality or enforceability of such remaining provisions or parts
thereof shall not in any way be affected or impaired by the severance of
the provisions or parts thereof severed;
and
|
|
(b)
|
the
invalidity, illegality or unenforceability of any provision or part
thereof contained in this Agreement in any jurisdiction shall not affect
or impair such provision or part thereof or any other provisions of this
Agreement in any other
jurisdiction.
|
|
13.6
|
Further
Assurances
|
Each
party hereto shall, from time to time, and at all times hereafter, at the
request of any other party hereto, but without further consideration, do all
such further acts and execute and deliver all such further documents and
instruments as shall be reasonably required in order to fully perform and carry
out the terms and intent hereof.
|
13.7
|
Execution
in Counterparts
|
This
Agreement may be executed in counterparts, each of which is and is hereby
conclusively deemed to be an original and counterparts collectively are to be
conclusively deemed one instrument. Delivery of counterparts may be
effected by facsimile transmission.
|
13.8
|
Waiver
|
No
waiver by, any party hereto shall be effective unless such waiver is in writing
and any waiver shall affect only the matter, and the occurrence thereof,
specifically identified and shall not extend to any other matter or
occurrence.
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26 -
|
13.9
|
Limitations
on Liability
|
|
(a)
|
The
parties hereto acknowledge that as administrator of Enerplus, is entering
into this Agreement solely in its capacity as administrator on behalf of
Enerplus and the obligations of Enerplus hereunder shall not be personally
binding upon such trustee or any of the Unitholders and that any recourse
against Administration of Enerplus, the trustee of Enerplus or any
Unitholder in any manner in respect of any indebtedness, obligation or
liability of Enerplus arising hereunder or arising in connection herewith
or from the matters to which this Agreement relates, if any, including
without limitation claims based on negligence or otherwise tortuous
behaviour, shall be limited to, and satisfied only out of, the Trust Fund
as defined in the Amended and Restated Trust Indenture of Enerplus dated
as of May 30, 2008, as from time to time amended, supplemented or
restated.
|
|
(b)
|
Enerplus
Exchangeable Limited Partnership is a limited partnership formed under the
laws of Alberta, a limited partner of which is only liable for any of the
limited partnership's liabilities or any of the limited partnership's
losses to the extent of the amount that the limited partner has
contributed or agreed to contribute to the limited partnership's capital
and the limited partner's pro rata share of any undistributed
income.
|
[Remainder of the page intentionally
left blank]
-
27 -
IN WITNESS WHEREOF the parties
hereto have executed this Agreement.
|
By
EnerMark Inc.
|
||
|
By:
|
"Xxxxxx X.
Xxxxxx"
|
|
|
|
Xxxxxx
X. Xxxxxx
|
|
|
|
Senior
Vice President &
|
|
|
|
Chief
Financial Officer
|
|
|
By:
|
"Xxxxx X.
XxXxx"
|
|
|
|
Xxxxx
X. XxXxx
|
|
|
|
Vice
President, General Counsel &
|
|
|
|
Corporate
Secretary
|
|
|
ENERPLUS
EXCHANGEABLE LIMITED PARTNERSHIP, by its general partner, EnerMark
Inc.
|
||
|
By:
|
"Xxxxxx X.
Xxxxxx"
|
|
|
|
Xxxxxx X. Xxxxxx | |
|
|
Senior
Vice President &
|
|
|
|
Chief
Financial Officer
|
|
|
By:
|
"Xxxxx X.
XxXxx"
|
|
|
|
Xxxxx
X. XxXxx
|
|
|
|
Vice
President, General Counsel &
|
|
|
|
Corporate
Secretary
|
|
|
COMPUTERSHARE
TRUST COMPANY OF CANADA
|
||
|
Per:
|
"Xxx
Xxxxxx"
|
|
|
|
Xxx Xxxxxx | |
|
|
Professional,
Corporate Trust
|
|
|
Per:
|
"Xxxxx
Xxxxxxx"
|
|
|
|
Xxxxx
Xxxxxxx
|
|
|
|
Manager,
Corporate Trust
|
|
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28 -
