FOURTH SUPPLEMENTAL TRUST INDENTURE
Exhibit
99.5
This
Fourth Supplemental Trust Indenture is entered into as of the 11th
day of
January, 2008.
AMONG:
CANETIC
RESOURCES TRUST, an
open ended trust governed under the laws of the Province of Alberta and having
its head office in the City of Calgary, in the Province of Alberta (hereinafter
called "CaneticTrust")
AND
PENN
WEST PETROLEUM LTD., a
corporation existing under the laws of the Province of Alberta and having
its
head office in the City of Calgary, in the Province of Alberta (hereinafter
called "Penn West" or
the "Corporation")
AND
PENN
WEST ENERGY TRUST, an
open ended trust governed under the laws of the Province of Alberta and having
its head office in the City of Calgary, in the Province of Alberta (hereinafter
called "Penn WestTrust")
AND
COMPUTERSHARE
TRUST COMPANY OF
CANADA, a trust company incorporated under the federal laws of Canada
having an office in the City of Calgary, in the Province of Alberta (hereinafter
called the "Debenture
Trustee")
WITNESSETH
THAT:
WHEREAS
Acclaim Energy Trust ("Acclaim"), Acclaim Energy
Inc.
("AEI") and the
Debenture Trustee entered into an indenture (the "Original Indenture") dated
December 17, 2002 to provide for the creation and issuance of a first
series of debentures being 11.0% convertible extendible unsecured subordinated
debentures, which debentures matured on December 31, 2007 and have been
satisfied and discharged and are no longer outstanding under the Original
Indenture, as amended;
AND
WHEREAS Acclaim, AEI and the Debenture Trustee entered into a first supplemental
indenture (the "First
SupplementalIndenture") dated
June 15,
2004 to provide for the creation and issuance of a second series of debentures
being 8.0% convertible extendible unsecured subordinated debentures (the
"8.0%
Debentures");
AND
WHEREAS Acclaim, Canetic Trust, Canetic Resources Inc. ("CRI") and the Debenture
Trustee entered into a second supplemental indenture (the "Second Supplemental
Indenture") dated January 5, 2006 pursuant to which Canetic Trust,
as Successor, assumed all of the rights, covenants and obligations of Acclaim
under the Original Indenture, as amended, in accordance with the terms
thereof;
AND
WHEREAS pursuant to a business combination among Canetic Trust, CRI, Penn
West
Trust and Penn West effective as of January 11, 2008, among other things:
(i) Penn West Trust will acquire all of the assets of Canetic Trust; and
(ii) CRI and certain other entities will amalgamate to form the
Corporation;
AND
WHEREAS Penn West Trust, as Successor, wishes to assume all of the rights,
covenants and obligations of Canetic Trust under the Original Indenture,
as
supplemental by the First Supplemental Indenture, the Second Supplemental
Indenture and the Third Supplemental Indenture, in accordance with the terms
thereof;
AND
WHEREAS the foregoing recitals are made as representations and statements
of
fact by Penn West Trust and not by the Debenture Trustee;
NOW
THEREFORE it is hereby covenanted, agreed and declared as follows:
ARTICLE 1
DEFINITIONS
AND AMENDMENTS TO INDENTURE
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1.1
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Definitions
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All
capitalized terms not defined herein shall have the meanings given to them
in
the Indenture and, in addition, in this Supplemental Indenture and in the
Debentures, unless there is something in the subject matter or context
inconsistent therewith, the expressions following shall have the following
meanings, namely:
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(a)
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"Penn
West Units" means
trust units of Penn West Trust; and
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(b)
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"Indenture"
means the
Original Indenture, as supplemented by the First Supplemental Indenture,
the Second Supplemental Indenture and the Third Supplemental Indenture.
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1.2
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Amendments
to Indenture
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(a)
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This
Supplemental Indenture is supplemental to the Indenture and the
Indenture
and this Supplemental Indenture shall hereafter be read together
and shall
have effect, so far as practicable, with respect to the Debentures
as if
all the provisions of the Indenture and this Supplemental Indenture
were
contained in one instrument. The Indenture is and shall remain
in full
force and effect with regards to all matters governing the Debentures,
except as the Indenture is amended, superceded, modified or supplemented
by this Supplemental Indenture. Any references in the text of this
Supplemental Indenture to section numbers, article numbers, "hereto",
"herein", "hereby", "hereunder", "hereof" and similar expressions
refer to
the Indenture unless otherwise qualified.
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(b)
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As
of and from the date hereof, the Indenture is amended by substituting
Penn
West Trust as a party to the Indenture and replacing Canetic Trust
with
its Successor, Penn West Trust.
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2
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References
to CRI in the Indenture shall be changed to refer to Penn West.
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(d)
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References
to Trust Units or Canetic Units in the Indenture shall be changed
to refer
to Penn West Units.
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(e)
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The
Conversion Price in effect on the date hereof for each Penn West
Unit to
be issued upon the conversion of 8.0% Debentures shall be equal
to
$30.2136 such that approximately 33.0977 Penn West Units shall
be issued
for each $1,000 principal amount of 8.0% Debentures so converted.
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(f)
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The
Conversion Price in effect on the date hereof for each Penn West
Unit to
be issued upon the conversion of 6.5% Debentures shall be equal
to
$51.5534 such that approximately 19.3974 Penn West Units shall
be issued
for each $1,000 principal amount of 6.5% Debentures so converted.
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(g)
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The
form of certificate for the 8.0% Debenture shall be replaced with
the form
substantially as set out in Schedule A, with
such
insertions, omissions, substitutions or other variations as shall
be
required or permitted by the Indenture, and may have imprinted
or
otherwise reproduced thereon such legend or legends or endorsements,
not
inconsistent with the provisions of the Indenture, as may be required
to
comply with any law or with any rules or regulations pursuant thereto
or
with any rules or regulations of any securities exchange or securities
regulatory authority or to conform with general usage, all as may
be
determined by the directors of Penn West (on behalf of Penn West
Trust)
executing such 8.0% Debenture in accordance with the Indenture.
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(h)
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The
form of certificate for the 6.5% Debenture shall be replaced with
the form
substantially as set out in Schedule B, with
such
insertions, omissions, substitutions or other variations as shall
be
required or permitted by the Indenture, and may have imprinted
or
otherwise reproduced thereon such legend or legends or endorsements,
not
inconsistent with the provisions of the Indenture, as may be required
to
comply with any law or with any rules or regulations pursuant thereto
or
with any rules or regulations of any securities exchange or securities
regulatory authority or to conform with general usage, all as may
be
determined by the directors of Penn West (on behalf of Penn West
Trust)
executing such 6.5% Debenture in accordance with the Indenture.
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ARTICLE 2
SUCCESSOR
TRUST
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2.1
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Assumption
of Obligations
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Penn
West Trust hereby covenants and agrees to assume and does assume all of the
rights, covenants and obligations of Canetic Trust in and to the Indenture
and
all of the covenants and obligations of Canetic Trust under the Debentures
as
and from the date hereof. Without limiting the generality of the foregoing,
from
and after the date hereof, the Debentures will be valid and binding obligations
of Penn West Trust entitling the holders thereof, as against Penn West Trust,
to
all rights of Debentureholders under the Indenture.
ARTICLE 3
ADDITIONAL
MATTERS
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3.1
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Confirmation
of Indenture
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The
Indenture, as amended and supplemented by this Supplemental Indenture, is
in all
respects confirmed.
3
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Governing
Law
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This
Supplemental Indenture shall be construed in accordance with the laws of
the
Province of Alberta and the laws of Canada applicable therein and shall be
treated, in all respects, as an Alberta contract.
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3.3
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Further
Assurances
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The
parties shall, with reasonable diligence, do all such things and provide
all
such reasonable assurances as may be required to consummate the transactions
contemplated by this Supplemental Indenture, and each party shall provide
such
further documents or instruments required by the other party as may be
reasonably necessary or desirable to effect the purpose of this Supplemental
Indenture and carry out its provisions.
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3.4
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Execution
by Penn West
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The
parties hereto acknowledge that with respect to Penn West's execution of
this
Fourth Supplemental Indenture on behalf of Penn West Trust, Penn West is
entering into this Fourth Supplemental Indenture solely in its capacity as
administrator of Penn West Trust, and the obligations of Penn West Trust
hereunder shall not be personally binding upon the administrator or any
registered or beneficial holder of units of Penn West Trust, and that resort
shall not be had to, nor shall recourse be sought from, any of the foregoing
or
the private property of any of the foregoing in any manner in respect of
any
indebtedness, obligation or liability of Penn West Trust arising hereunder
or
arising in connection herewith or from the matters to which this Fourth
Supplemental Indenture relates, if any, including without limitation claims
based on negligence or otherwise tortious behaviour, and recourse shall be
limited to, and satisfied only out of, the "Trust Fund" (as defined in the
trust
indenture of Penn West Trust).
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3.5
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Counterparts
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This
Supplemental Indenture may be executed by the parties in separate counterparts
each of which when so executed and delivered shall be an original, but all
such
counterparts shall together constitute one and the same instrument.
4
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CANETIC
RESOURCES TRUST,
by its administrator,
CANETIC
RESOURCES
INC.
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Per:
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(signed)
"J. Xxxx
Xxxxxxx"
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J.
Xxxx Xxxxxxx
President
and Chief Executive Officer
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PENN
WEST ENERGY TRUST,
by its administrator,
PENN
WEST PETROLEUM
LTD.
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Per:
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(signed)
"Xxxxxxx X.
Xxxxxx"
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Xxxxxxx
X. Xxxxxx
Chief
Executive Officer
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PENN
WEST PETROLEUM LTD.
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Per:
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(signed)
"Xxxxxxx X.
Xxxxxx"
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Xxxxxxx
X. Xxxxxx
Chief
Executive Officer
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COMPUTERSHARE
TRUST COMPANY OF CANADA
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|
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Per:
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(signed)
"Xxx
Xxxxxx"
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Per:
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(signed)
"Xxxxx
Xxxxx"
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5
TO
THE FOURTH SUPPLEMENTAL TRUST INDENTURE AMONG
CANETIC
RESOURCES TRUST, PENN WEST PETROLEUM LTD., PENN WEST ENERGY TRUST AND
COMPUTERSHARE TRUST COMPANY OF CANADA
FORM
OF 8.0% DEBENTURE
Unless
this certificate is presented by an authorized representative of CDS Clearing
and Depository Services Inc. ("CDS") to Penn West Energy Trust (the "Issuer")
or
its agent for registration of transfer, exchange or payment, and any certificate
issued in respect thereof is registered in the name of CDS & CO., or in such
other name as is requested by an authorized representative of CDS (and any
payment is made to CDS & CO. or to such other entity as is requested by an
authorized representative of CDS), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered holder
hereof, CDS & CO., has an interest herein. This certificate is
issued pursuant to a Master Letter of Representations of the Issuer to CDS,
as
such letter may be replaced or amended from time to time.
CUSIP: 000000XX0
ISIN: CA
707885AD15
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No.
[•]
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$[•]
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(A
trust governed by the laws of Alberta)
8.0%
CONVERTIBLE EXTENDIBLE UNSECURED SUBORDINATED DEBENTURE
DUE
AUGUST 31, 2004
(AUGUST
31, 2009, IF EXTENDED)
PENN
WEST ENERGY TRUST (the
"Trust") for value
received hereby acknowledges itself indebted and, subject to the provisions
of
the trust indenture (the "Original Indenture") dated as
of December 17, 2002, as supplemented by the first supplemental indenture
(the "First Supplemental
Indenture") dated as of June 15, 2004, among Acclaim Energy Trust,
Acclaim Energy Inc. and Computershare Trust Company of Canada (the "Debenture Trustee"), as
further amended and supplemented by the second supplemental indenture dated
as
of January 5, 2006 among Acclaim Energy Trust, Canetic Resources Trust, Canetic
Resources Inc. and the Debenture Trustee (the "Second Supplemental
Indenture"), as further amended and supplemented by the third
supplemental indenture dated as of August 24, 2006 among Canetic
Resources Trust, Canetic Resources Inc. and the Debenture Trustee (the "Third Supplemental
Indenture"), as further amended and supplemented by the fourth
supplemental indenture dated as of January 11, 2008 among Canetic Resources
Trust, the Trust, Penn West Petroleum Ltd. and the Debenture Trustee, whereby
the Trust, as successor, agreed to assume all of the rights, covenants and
obligations of Canetic Resources Trust under the Original Indenture, as amended
(together with the Original Indenture, the First Supplemental Indenture,
the
Second Supplemental Indenture and the Third Supplemental Indenture, the "Indenture"), promises to
pay
to the registered holder hereof on August 31, 2009 (the "Maturity Date") or on such
earlier date as the principal amount hereof may become due in accordance
with
the provisions of the Indenture the principal sum of [• ($•)] in lawful money
of
Canada on presentation and surrender of this Debenture (as defined herein)
at
the main branch of the Debenture Trustee in Calgary, Alberta or Toronto,
Ontario
in accordance with the terms of the Indenture and the Supplemental Indenture
and, subject as hereinafter provided, to pay interest on the principal amount
hereof from the date hereof, or from the last Interest Payment Date to which
interest shall have been paid or made available for payment on the outstanding
Debentures, whichever is
later,
at the rate of 8.0% per annum, in like money, in arrears in semi-annual
instalments (less any tax required by law to be deducted) on February 28
and August 31 in each year commencing on February 28, 2005 and, should
the Trust at any time make default in the payment of any principal or interest,
to pay interest on the amount in default at the same rate, in like money
and on
the same dates. For certainty, subject to adjustment as hereinafter
provided, the first interest payment will include interest accrued from June
15,
2004 to, but excluding, February 28, 2005, which will be equal to $56.54
for
each $1,000 principal amount of the Debentures. The Debentures will
mature on August 31, 2009, provided that if the closing of the Chevron
Acquisition does not take place by 5:00 p.m. (Calgary time) on August 31,
2004,
if the Chevron Acquisition is terminated at any earlier time or if the Trust
has
advised the Underwriters or announced to the public that it does not intend
to
proceed with the Chevron Acquisition, the Debentures will mature on August
31,
2004. If the Chevron Acquisition takes place prior to 5:00 p.m.
(Calgary time) on August 31, 2004, the Maturity Date of the Debentures will
be
automatically extended from August 31, 2004 to August 31, 2009 without any
further act or formality on the part of the Trust or the Debenture
Trustee.
Interest
hereon shall be payable by cheque mailed by prepaid ordinary mail or by
electronic transfer of funds to the registered holder hereof and, subject
to the
provisions of the Indenture, the mailing of such cheque or the electronic
transfer of such funds shall, to the extent of the sum represented thereby
(plus
the amount of any tax withheld), satisfy and discharge all liability for
interest on this Debenture.
This
Debenture is one of the 8.0% Convertible Extendible Unsecured Subordinated
Debentures, due on the Maturity Date (referred to herein as the "Debenture") of the Trust
issued or issuable under the provisions of the Indenture. The
Debentures authorized for issue are limited to an aggregate principal amount
of
$75,000,000 in lawful money of Canada. Reference is hereby expressly
made to the Indenture for a description of the terms and conditions upon
which
the Debentures are or are to be issued and held and the rights and remedies
of
the holders of the Debentures and of the Trust and of the Debenture Trustee,
all
to the same effect as if the provisions of the Indenture were herein set
forth
to all of which provisions the holder of this Debenture by acceptance hereof
assents.
The
Debentures are issuable only in denominations of $1,000 and integral multiples
thereof. Upon compliance with the provisions of the Indenture, Debentures
of any
denomination may be exchanged for an equal aggregate principal amount of
Debentures in any other authorized denomination or denominations.
Any
part, being $1,000 or an integral multiple thereof, of the principal of this
Debenture, provided that the principal amount of this Debenture is in a
denomination in excess of $1,000, is convertible, at the option of the holder
hereof, upon surrender of this Debenture at the principal office of the
Debenture Trustee in Calgary, Alberta or Toronto, Ontario, at any time prior
to
the close of business on the Maturity Date or, if this Debenture is called
for
redemption on or prior to such date, then up to but not after the close of
business on the last Business Day immediately preceding the date specified
for
redemption of this Debenture, into Penn West Units (without adjustment for
interest accrued hereon or for dividends or distributions on Penn West Units
issuable upon conversion) at a conversion price of $30.2136 (the "Conversion Price") per Penn
West Unit, being a rate of approximately 33.0977 Penn West Units for each
$1,000
principal amount of Debentures, after giving effect to certain adjustments
to
the Conversion Price described in the Indenture, as amended, all subject
to the
terms and conditions and in the manner set forth in the
Indenture. The Indenture also makes provision for the adjustment of
the Conversion Price in the events therein specified. No fractional Penn
West
Units will be issued on any conversion but in lieu thereof, the Trust will
satisfy such fractional interest by a cash payment equal to the market price
of
such fractional interest determined in accordance with the
Indenture. No adjustment in the number of Penn West Units to be
issued upon conversion will be made for distributions or dividends
2
on
Penn West Units issuable upon conversion or for interest accrued on Debentures
surrendered for conversion.
This
Debenture will be redeemed at the option of the Trust on the terms and
conditions set out in the Indenture at the redemption price therein and herein
set out provided that this Debenture is not redeemable on or before
August 31, 2007, except in the event of the satisfaction of certain
conditions after a Change of Control has occurred. After
August 31, 2007 and on or prior to August 31, 2008, the Debentures may be
redeemed at the option of the Trust in whole or in part from time to time
on
notice as provided for in the Indenture at a price equal to $1,050 per $1,000
principal amount of Debenture plus accrued and unpaid interest. After
August 31, 2008, the Debentures will be redeemable prior to maturity in
whole or in part from time to time at the option of the Trust on notice as
provided for in the Indenture at a price equal to $1,025 per $1,000 principal
amount of Debenture plus accrued and unpaid interest. The Trust may, on notice
as provided in the Indenture, at its option and subject to any applicable
regulatory approval, elect to satisfy its obligation to pay all or any portion
of the applicable Redemption Price by the issue of that number of Penn West
Units obtained by dividing the applicable Redemption Price by 95% of the
weighted average trading price of the Penn West Units on the Toronto Stock
Exchange for the 20 consecutive trading days ending on the fifth trading
day
preceding the Redemption Date.
Upon
the occurrence of a Change of Control of the Trust, the Trust is required
to
make an offer to purchase all of the Debentures at a price equal to 101%
of the
principal amount of such Debentures plus accrued and unpaid interest up to,
but
excluding, the date the Debentures are so repurchased (the "Offer"). If 90% or
more of the principal amount of all Debentures outstanding on the date the
Trust
provides notice of a Change of Control to the Debenture Trustee have been
tendered for purchase pursuant to the Offer, the Trust has the right to redeem
and shall redeem all the remaining outstanding Debentures on the same date
and
at the same price.
If
a takeover bid for Debentures, within the meaning of the Securities Act (Alberta), is
made and 90% or more of the principal amount of all the Debentures (other
than
Debentures held at the date of the takeover bid by or on behalf of the Offeror,
Associates or Affiliates of the Offeror or anyone acting jointly or in concert
with the Offeror) are taken up and paid for by the Offeror, the Offeror will
be
entitled to acquire the Debentures of those holders who did not accept the
offer
on the same terms as the Offeror acquired the first 90% of the principal
amount
of the Debentures.
The
Trust may, on notice as provided in the Indenture, at its option and subject
to
any applicable regulatory approval, elect to satisfy the obligation to repay
all
or any portion of the principal amount of this Debenture due on the Maturity
Date by the issue of that number of Freely Tradeable Penn West Units obtained
by
dividing the principal amount of this Debenture to be paid for in Penn West
Units pursuant to the exercise by the Trust of the Unit Repayment Right by
95%
of the weighted average trading price of the Penn West Units on the Toronto
Stock Exchange for the 20 consecutive trading days ending on the fifth trading
day preceding the Maturity Date.
The
indebtedness evidenced by this Debenture, and by all other Debentures now
or
hereafter certified and delivered under the Indenture, is a direct unsecured
obligation of the Trust, and is subordinated in right of payment, to the
extent
and in the manner provided in the Indenture, to the prior payment of all
Senior
Indebtedness, whether outstanding at the date of the Indenture or thereafter
created, incurred, assumed or guaranteed, provided that the Debentures will
rank
pari passu with
the Debentures.
The
principal hereof may become or be declared due and payable before the stated
maturity in the events, in the manner, with the effect and at the times provided
in the Indenture.
3
The
Indenture contains provisions making binding upon all holders of
Debentures outstanding thereunder (or in certain circumstances specific series
of Debentures) resolutions passed at meetings of such holders held in accordance
with such provisions and instruments signed by the holders of a specified
majority of Debentures outstanding (or specific series), which resolutions
or
instruments may have the effect of amending the terms of this Debenture or
the
Indenture.
The
Indenture contains provisions disclaiming any personal liability on the part
of
holders of Penn West Units, or the trustees, officers or agents of the Trust
in
respect of any obligation or claim arising out of the Indenture or this
Debenture.
This
Debenture may only be transferred, upon compliance with the conditions
prescribed in the Indenture, in one of the registers to be kept at the principal
office of the Debenture Trustee in Calgary, Alberta or Toronto, Ontario and
in
such other place or places and/or by such other registrars (if any) as the
Trust
with the approval of the Debenture Trustee may designate. No transfer of
this
Debenture shall be valid unless made on the register by the registered holder
hereof or his executors or administrators or other legal representatives,
or his
or their attorney duly appointed by an instrument in form and substance
satisfactory to the Debenture Trustee or other registrar, and upon compliance
with such reasonable requirements as the Debenture Trustee and/or other
registrar may prescribe and upon surrender of this Debenture for
cancellation.
This
Debenture shall not become obligatory for any purpose until it shall have
been
certified by the Debenture Trustee under the Indenture.
Capitalized
words or expressions used in this Debenture shall, unless otherwise defined
herein, have the meaning ascribed thereto in the Indenture.
4
IN
WITNESS WHEREOF
PENN WEST ENERGY TRUST has caused this Debenture to be signed by its
authorized representative as of the 11th
day of
January, 2008.
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PENN
WEST ENERGY TRUST,
by its
administrator,
Penn West Petroleum Ltd.
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Per:
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5
This
Debenture is one of the 8.0% Convertible Extendible Unsecured Subordinated
Debentures, due August 31, 2004 (August 31, 2009, if extended) referred to
in the Indenture within mentioned.
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COMPUTERSHARE
TRUST COMPANY OF CANADA
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Per:
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(Authorized
Officer)
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|
(No
writing hereon except by Debenture Trustee or other registrar)
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Date
of Registration
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In
Whose Name Registered
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Signature
of Debenture Trustee or Registrar
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|
[•]
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[•]
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FOR
VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
__________________________________, whose address and social insurance number,
if applicable, are set forth below, this Debenture (or $______________ principal
amount hereof*) of PENN WEST ENERGY TRUST standing in the name(s) of the
undersigned in the register maintained by the Trust with respect to such
Debenture and does hereby irrevocably authorize and direct the Debenture
Trustee
to transfer such Debenture in such register, with full power of substitution
in
the premises.
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Dated:
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| Address of Transferee: | |
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|
(Xxxxxx
Xxxxxxx, Xxxx, Xxxxxxxx and Postal
Code)
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|
Social
Insurance Number of Transferee, if applicable:
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*If
less than the full principal amount of the within Debenture is to be
transferred, indicate in the space provided the principal amount (which must
be
$1,000 or an integral multiple thereof, unless you hold a Debenture in a
non-integral multiple of $1,000, in which case such Debenture is transferable
only in its entirety) to be transferred.
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1.
|
The
signature(s) to this assignment must correspond with the name(s)
as
written upon the face of this Debenture in every particular without
alteration or any change whatsoever. The signature(s) must be guaranteed
by a Canadian chartered bank or trust company or by a member of
an
acceptable Medallion Guarantee Program. Notarized or witnessed
signatures
are not acceptable as guaranteed signatures. The Guarantor must
affix a
stamp bearing the actual words: "SIGNATURE GUARANTEED".
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2.
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The
registered holder of this Debenture is responsible for the payment
of any
documentary, stamp or other transfer taxes that may be payable
in respect
of the transfer of this Debenture.
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Signature
of Guarantor:
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Authorized
Officer
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Signature
of transferring registered holder
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|
Name
of Institution
|
TO
CDS GLOBAL DEBENTURE
8.0%
CONVERTIBLE EXTENDIBLE UNSECURED SUBORDINATED DEBENTURES
DUE
AUGUST 31, 2004 (AUGUST 31, 2009, IF EXTENDED)
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Initial
Principal Amount: $[•]
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CUSIP: 000000XX0
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ISIN:
CA
707885AD15
Authorization:
_________________________________
ADJUSTMENTS
|
Date
|
Amount
of Increase
|
Amount
of Decrease
|
New
Principal Amount
|
Authorization
|
TO
THE FOURTH SUPPLEMENTAL TRUST INDENTURE AMONG
CANETIC
RESOURCES TRUST, PENN WEST PETROLEUM LTD., PENN WEST ENERGY TRUST AND
COMPUTERSHARE TRUST COMPANY OF CANADA
FORM
OF 6.5% DEBENTURE
Unless
this certificate is presented by an authorized representative of CDS Clearing
and Depository Services Inc. ("CDS") to Penn West Energy Trust (the "Issuer")
or
its agent for registration of transfer, exchange or payment, and any certificate
issued in respect thereof is registered in the name of CDS & CO., or in such
other name as is requested by an authorized representative of CDS (and any
payment is made to CDS & CO. or to such other entity as is requested by an
authorized representative of CDS), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered holder
hereof, CDS & CO., has an interest herein. This certificate is
issued pursuant to a Master Letter of Representations of the Issuer to CDS,
as
such letter may be replaced or amended from time to time.
[INSERT
US LEGEND AS APPLICABLE]
CUSIP: 000000XX0
ISIN: CA
707885AF62
|
No.
[•]
|
$[•]
|
PENN
WEST ENERGY TRUST
(A
trust governed by the laws of Alberta)
6.5%
CONVERTIBLE EXTENDIBLE UNSECURED SUBORDINATED DEBENTURE
DUE
SEPTEMBER 30, 2006
(DECEMBER
31, 2011, IF EXTENDED)
PENN
WEST ENERGY TRUST (the
"Trust") for value
received hereby acknowledges itself indebted and, subject to the provisions
of
the trust indenture (the "Original Indenture") dated as
of December 17, 2002, as supplemented by the first supplemental indenture
(the "First Supplemental
Indenture") dated as of June 15, 2004, among Acclaim Energy Trust,
Acclaim Energy Inc. and Computershare Trust Company of Canada (the "Debenture Trustee"), as
further amended and supplemented by the second supplemental indenture dated
as
of January 5, 2006 among Acclaim Energy Trust, Canetic Resources Trust, Canetic
Resources Inc. and the Debenture Trustee (the "Second Supplemental
Indenture"), as further amended and supplemented by the third
supplemental indenture dated as of August 24, 2006 among Canetic
Resources Trust, Canetic Resources Inc. and the Debenture Trustee (the "Third Supplemental
Indenture"), as further amended and supplemented by the fourth
supplemental indenture dated as of January 11, 2008 among Canetic Resources
Trust, the Trust, Penn West Petroleum Ltd. and the Debenture Trustee, whereby
the Trust, as successor, agreed to assume all of the rights, covenants and
obligations of Canetic Resources Trust under the Original Indenture, as amended
(together with the Original Indenture, the First Supplemental Indenture,
the
Second Supplemental Indenture and the Third Supplemental Indenture, the "Indenture"), promises to
pay
to the registered holder hereof on December 31, 2011 (the "Maturity Date") or on such
earlier date as the principal amount hereof may become due in accordance
with
the provisions of the Indenture the principal sum of [• Dollars ($•)] in lawful
money of Canada on presentation and surrender of this Debenture (as defined
herein) at the main branch of the Debenture Trustee in Calgary, Alberta or
Toronto, Ontario in
accordance
with the terms of the Indenture and the Indenture and, subject as hereinafter
provided, to pay interest on the principal amount hereof from the date hereof,
or from the last Interest Payment Date to which interest shall have been
paid or
made available for payment on the outstanding Debentures, whichever is later,
at
the rate of 6.5% per annum, in like money, in arrears in semi-annual instalments
(less any tax required by law to be deducted) on June 30 and December 31
in each
year commencing on December 31, 2006 and, should the Trust at any time make
default in the payment of any principal or interest, to pay interest on the
amount in default at the same rate, in like money and on the same
dates. For certainty, subject to adjustment as hereinafter provided,
the first interest payment will include interest accrued from August 24,
2006
to, but excluding, December 31, 2006, which will be equal to $22.9726 for
each
$1,000 principal amount of the Debentures. The Debentures will mature
on December 31, 2011, provided that if the closing of the Acquisition does
not
take place by 5:00 p.m. (Calgary time) on September 30, 2006, if the Acquisition
is terminated at any earlier time or if the Trust has advised the Underwriters
or announced to the public that it does not intend to proceed with the
Acquisition, the Debentures will mature on September 30, 2006. If the
Acquisition takes place prior to 5:00 p.m. (Calgary time) on September 30,
2006,
the Maturity Date of the Debentures will be automatically extended from
September 30, 2006 to December 31, 2011 without any further act or formality
on
the part of the Trust or the Debenture Trustee.
Interest
hereon shall be payable by cheque mailed by prepaid ordinary mail or by
electronic transfer of funds to the registered holder hereof and, subject
to the
provisions of the Indenture, the mailing of such cheque or the electronic
transfer of such funds shall, to the extent of the sum represented thereby
(plus
the amount of any tax withheld), satisfy and discharge all liability for
interest on this Debenture.
This
Debenture is one of the 6.5% Convertible Extendible Unsecured Subordinated
Debentures, due on the Maturity Date (referred to herein as the "Debenture") of the Trust
issued or issuable under the provisions of the Indenture. The
Debentures authorized for issue are limited to an aggregate principal amount
of
$230,000,000 in lawful money of Canada. Reference is hereby expressly
made to the Indenture for a description of the terms and conditions upon
which
the Debentures are or are to be issued and held and the rights and remedies
of
the holders of the Debentures and of the Trust and of the Debenture Trustee,
all
to the same effect as if the provisions of the Indenture were herein set
forth
to all of which provisions the holder of this Debenture by acceptance hereof
assents.
The
Debentures are issuable only in denominations of $1,000 and integral multiples
thereof. Upon compliance with the provisions of the Indenture, Debentures
of any
denomination may be exchanged for an equal aggregate principal amount of
Debentures in any other authorized denomination or denominations.
The
whole, or if this Debenture is in a denomination in excess of $1,000, any
part
which is $1,000 or an integral multiple thereof, of the principal of this
Debenture is convertible, at the option of the holder hereof, upon surrender
of
this Debenture at the principal office of the Debenture Trustee in Calgary,
Alberta or Toronto, Ontario, at any time prior to the close of business on
the
earlier of September 30, 2006 or December 31, 2011, as applicable, and the
last
Business Day immediately preceding the date specified by the Trust for
redemption of the Debentures, into Penn West Units (without adjustment for
interest accrued hereon or for dividends or distributions on Penn West Units
issuable upon conversion) at a conversion price of $51.5534 (the "Conversion Price") per Penn
West Unit, being a rate of approximately 19.3974 Penn West Units for each
$1,000
principal amount of Debentures, after giving effect to certain adjustments
to
the Conversion Price described in the Indenture, as amended, all subject
to the
terms and conditions and in the manner set forth in the
Indenture. The Indenture makes provision for the adjustment of the
Conversion Price in the events therein specified. No fractional Penn West
Units
will be issued on any conversion but in lieu thereof, the Trust will satisfy
such fractional interest by a cash
2
payment
equal to the market price of such fractional interest determined in accordance
with the Indenture. No adjustment in the number of Penn West Units to
be issued upon conversion will be made for distributions or dividends on
Penn
West Units issuable upon conversion or for interest accrued on Debentures
surrendered for conversion.
This
Debenture will be redeemed at the option of the Trust on the terms and
conditions set out in the Indenture at the redemption price therein and herein
set out provided that this Debenture is not redeemable on or before December
31,
2009, except in the event of the satisfaction of certain conditions after
a
Change of Control has occurred. After December 31, 2009 and on or
prior to December 31, 2010, the Debentures may be redeemed at the option
of the
Trust in whole or in part from time to time on notice as provided for in
the
Indenture at a price equal to $1,050 per $1,000 principal amount of Debenture
plus accrued and unpaid interest. After December 31, 2010, the
Debentures will be redeemable prior to maturity in whole or in part from
time to
time at the option of the Trust on notice as provided for in the Indenture
at a
price equal to $1,025 per $1,000 principal amount of Debenture plus accrued
and
unpaid interest. The Trust may, on notice as provided in the Indenture, at
its
option and subject to any applicable regulatory approval, elect to satisfy
its
obligation to pay all or any portion of the applicable Redemption Price by
the
issue of that number of Penn West Units obtained by dividing the applicable
Redemption Price by 95% of the weighted average trading price of the Penn
West
Units on the Toronto Stock Exchange for the 20 consecutive trading days ending
on the fifth trading day preceding the Redemption Date.
Upon
the occurrence of a Change of Control of the Trust, the Trust is required
to
make an offer to purchase all of the Debentures at a price equal to 101%
of the
principal amount of such Debentures plus accrued and unpaid interest up to,
but
excluding, the date the Debentures are so repurchased (the "Offer"). If 90% or
more of the principal amount of all Debentures outstanding on the date the
Trust
provides notice of a Change of Control to the Debenture Trustee have been
tendered for purchase pursuant to the Offer, the Trust has the right to redeem
and shall redeem all the remaining outstanding Debentures on the same date
and
at the same price.
If
a takeover bid for Debentures, within the meaning of the Securities Act (Alberta), is
made and 90% or more of the principal amount of all the Debentures (other
than
Debentures held at the date of the takeover bid by or on behalf of the Offeror,
Associates or Affiliates of the Offeror or anyone acting jointly or in concert
with the Offeror) are taken up and paid for by the Offeror, the Offeror will
be
entitled to acquire the Debentures of those holders who did not accept the
offer
on the same terms as the Offeror acquired the first 90% of the principal
amount
of the Debentures.
The
Trust may, on notice as provided in the Indenture, at its option and subject
to
any applicable regulatory approval, elect to satisfy the obligation to repay
all
or any portion of the principal amount of this Debenture due on the Maturity
Date by the issue of that number of Freely Tradeable Penn West Units obtained
by
dividing the principal amount of this Debenture to be paid for in Penn West
Units pursuant to the exercise by the Trust of the Unit Repayment Right by
95%
of the weighted average trading price of the Penn West Units on the Toronto
Stock Exchange for the 20 consecutive trading days ending on the fifth trading
day preceding the Maturity Date.
The
indebtedness evidenced by this Debenture, and by all other Debentures now
or
hereafter certified and delivered under the Indenture, is a direct unsecured
obligation of the Trust, and is subordinated in right of payment, to the
extent
and in the manner provided in the Indenture, to the prior payment of all
Senior
Indebtedness, whether outstanding at the date of the Indenture or thereafter
created, incurred, assumed or guaranteed, provided that the Debentures will
rank
pari passu with
the Debentures.
3
The
principal hereof may become or be declared due and payable
before the stated maturity in the events, in the manner, with the effect
and at
the times provided in the Indenture.
The
Indenture contains provisions making binding upon all holders of Debentures
outstanding thereunder (or in certain circumstances specific series of
Debentures) resolutions passed at meetings of such holders held in accordance
with such provisions and instruments signed by the holders of a specified
majority of Debentures outstanding (or specific series), which resolutions
or
instruments may have the effect of amending the terms of this Debenture or
the
Indenture.
The
Indenture contains provisions disclaiming any personal liability on the part
of
holders of Penn West Units, or the trustees, officers or agents of the Trust
in
respect of any obligation or claim arising out of the Indenture or this
Debenture.
This
Debenture may only be transferred, upon compliance with the conditions
prescribed in the Indenture, in one of the registers to be kept at the principal
office of the Debenture Trustee in Calgary, Alberta or Toronto, Ontario and
in
such other place or places and/or by such other registrars (if any) as the
Trust
with the approval of the Debenture Trustee may designate. No transfer of
this
Debenture shall be valid unless made on the register by the registered holder
hereof or his executors or administrators or other legal representatives,
or his
or their attorney duly appointed by an instrument in form and substance
satisfactory to the Debenture Trustee or other registrar, and upon compliance
with such reasonable requirements as the Debenture Trustee and/or other
registrar may prescribe and upon surrender of this Debenture for
cancellation.
This
Debenture shall not become obligatory for any purpose until it shall have
been
certified by the Debenture Trustee under the Indenture.
Capitalized
words or expressions used in this Debenture shall, unless otherwise defined
herein, have the meaning ascribed thereto in the Indenture.
4
|
PENN
WEST ENERGY TRUST,
by its administrator, Penn West Petroleum Ltd.
|
|
|
Per:
|
|
5
This
Debenture is one of the 6.5% Convertible Extendible Unsecured Subordinated
Debentures, due September 30, 2006 (December 31, 2011, if extended) referred
to
in the Indenture within mentioned.
|
COMPUTERSHARE
TRUST COMPANY OF CANADA
|
|
|
Per:
|
|
|
(Authorized
Officer)
|
|
(No
writing hereon except by Debenture Trustee or other registrar)
|
Date
of Registration
|
In
Whose Name Registered
|
Signature
of Debenture Trustee or Registrar
|
|
[•]
|
[•]
|
|
FOR
VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
__________________________________, whose address and social insurance number,
if applicable, are set forth below, this Debenture (or $______________ principal
amount hereof*) of PENN WEST ENERGY TRUST standing in the name(s) of the
undersigned in the register maintained by the Trust with respect to such
Debenture and does hereby irrevocably authorize and direct the Debenture
Trustee
to transfer such Debenture in such register, with full power of substitution
in
the premises.
|
Dated:
|
| Address of Transferee: | |
|
|
(Xxxxxx
Xxxxxxx, Xxxx, Xxxxxxxx and Postal
Code)
|
|
Social
Insurance Number of Transferee, if applicable:
|
*If
less than the full principal amount of the within Debenture is to be
transferred, indicate in the space provided the principal amount (which must
be
$1,000 or an integral multiple thereof, unless you hold a Debenture in a
non-integral multiple of $1,000, in which case such Debenture is transferable
only in its entirety) to be transferred.
|
1.
|
The
signature(s) to this assignment must correspond with the name(s)
as
written upon the face of this Debenture in every particular without
alteration or any change whatsoever. The signature(s) must be guaranteed
by a Canadian chartered bank or trust company or by a member of
an
acceptable Medallion Guarantee Program. Notarized or witnessed
signatures
are not acceptable as guaranteed signatures. The Guarantor must
affix a
stamp bearing the actual words: "SIGNATURE GUARANTEED".
|
|
2.
|
The
registered holder of this Debenture is responsible for the payment
of any
documentary, stamp or other transfer taxes that may be payable
in respect
of the transfer of this Debenture.
|
Signature
of Guarantor:
|
Authorized
Officer
|
Signature
of transferring registered holder
|
|
Name
of Institution
|
TO
CDS GLOBAL DEBENTURE
PENN
WEST ENERGY TRUST
6.5%
CONVERTIBLE EXTENDIBLE UNSECURED SUBORDINATED DEBENTURES
DUE
SEPTEMBER 30, 2006 (DECEMBER 31, 2011, IF EXTENDED)
|
Initial
Principal Amount: $[•]
|
CUSIP: 000000XX0
|
ISIN:
CA
707885AF62
Authorization:
______________________________
ADJUSTMENTS
|
Date
|
Amount
of Increase
|
Amount
of Decrease
|
New
Principal Amount
|
Authorization
|
