THIRD SUPPLEMENTAL TRUST INDENTURE
Exhibit
99.4
This
Third 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
APF Energy Trust ("APF
Trust"), APF Energy Inc. ("APF") and the
Debenture
Trustee entered into an indenture (the "Original Indenture") dated
July 3, 2003 to provide for the creation and issuance of a first series of
debentures being 9.40% convertible unsecured subordinated debentures (the
"9.40%
Debentures");
AND
WHEREAS StarPoint Energy Trust ("StarPoint"), StarPoint Energy
Ltd. ("SEL"), APF Trust,
APF and the Debenture Trustee entered into a first supplemental indenture
(the
"First SupplementalIndenture")
dated June 27,
2005 pursuant to which StarPoint, as Successor, assumed the obligations of
APF
Trust under the Original Indenture and to provide for certain amendments
required to give effect to the business combination of StarPoint and APF
which
closed on June 27, 2005;
AND
WHEREAS Canetic Trust, Canetic Resources Inc. ("CRI"), StarPoint and
the
Debenture Trustee entered into a Second Supplemental Indenture (the "Second Supplemental
Indenture") dated January 5, 2006 pursuant to which Canetic, as
Successor, assumed the obligations of StarPoint under the Original Indenture
and
the First Supplemental Indenture and to provide for certain
amendments
required to give effect to the business combination of Canetic and StarPoint
which closed on January 5, 2006;
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
supplemented by the First Supplemental Indenture and the Second 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
and the Second 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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(c)
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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 9.40% Debentures shall be equal
to
$31.1068 such that approximately 32.1473 Penn West Units shall
be issued
for each $1,000 principal amount of 9.40% Debentures so converted.
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(f)
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The
form of certificate for the 9.40% 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 9.40% 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.
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3.2
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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
Third Supplemental Indenture on behalf of Penn West Trust, Penn West is entering
into this Third 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 Third Supplemental Indenture relates, if
any,
including without limitation claims based on negligence or otherwise tortuous
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.
IN
WITNESS WHEREOF the parties hereto have executed these presents under their
respective corporate seals and the hands of their proper officers in that
behalf.
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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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Per:
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(signed)
"Xxx
Xxxxxx"
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Per:
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(signed)
"Xxxxx
Xxxxx"
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SCHEDULE
"A"
TO
THE THIRD SUPPLEMENTAL TRUST INDENTURE AMONG
CANETIC
RESOURCES TRUST, PENN WEST PETROLEUM LTD., PENN WEST ENERGY TRUST AND
COMPUTERSHARE TRUST COMPANY OF CANADA
FORM
OF 9.40% DEBENTURE
This
Debenture is a Global Debenture within the meaning of the Indenture herein
referred to and is registered in the name of a Depository or a nominee thereof.
This Debenture may not be transferred to or exchanged for Debentures registered
in the name of any person other than the Depository or a nominee thereof
and no
such transfer may be registered except in the limited circumstances described
in
the Indenture. Every Debenture authenticated and delivered upon registration
of,
transfer of, or in exchange for, or in lieu of, this Debenture shall be a
Global
Debenture subject to the foregoing, except in such limited circumstances
described in the Indenture.
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 707885AC32
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No.
[•]
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$[•]
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(A
trust governed by the laws of Alberta)
9.40%
CONVERTIBLE UNSECURED SUBORDINATED DEBENTURE
DUE
JULY 31, 2008
PENN
WEST ENERGY TRUST (the
"Trust") for value
received hereby acknowledges itself indebted and, subject to the provisions
of
the trust indenture (the "OriginalIndenture")
dated as of
July 3, 2003 among APF Energy Trust, APF Energy Inc. and Computershare
Trust Company of Canada (the "Debenture Trustee"), as
amended and supplemented by the first supplemental indenture (the "First Supplemental Indenture")
dated as of June 27, 2005 whereby StarPoint Energy Trust, as successor, agreed
to assume all of the rights, covenants and obligations of APF Energy Trust
under
the Original Indenture, as further amended and supplemented by the second
supplemental indenture (the "Second Supplemental
Indenture") dated as of January 5, 2006 whereby Canetic Resources Trust,
as successor, agreed to assume all of the rights, covenants and obligations
of
StarPoint Energy Trust under the Original Indenture, as amended, and as further
amended and supplemented by the third supplemental indenture dated as of
January
11, 2008 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 and the Second Supplemental Indenture, the "Indenture"), promises to
pay
to the registered holder hereof on July 31, 2008 (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 Initial Debenture at the main
branch of the Debenture Trustee in Calgary, Alberta or Toronto, Ontario in
accordance with the terms of 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 hereon, whichever is later, at the rate of 9.40% per
annum, in like money, in arrears in equal semi-annual instalments (less any
tax
required by law to be deducted) on July 31 and January 31 in each year
and the last payment (representing interest payable from the last Interest
Payment Date to, but excluding, the Maturity Date) to fall due on the Maturity
Date 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.
Interest
hereon shall be payable by cheque mailed by prepaid ordinary mail to the
registered holder hereof 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 sending of such electronic transfer of 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 Initial
Debenture.
This
Initial Debenture is one of the Debentures of the Trust issued or issuable
in
one or more series under the provisions of the Indenture. The Initial Debentures
authorized for issue immediately are limited to an aggregate principal amount
of
$50,000,000 in lawful money of Canada. Reference is hereby expressly made
to the
Indenture for a description of the terms and conditions upon which the Initial
Debentures are or are to be issued and held and the rights and remedies of
the
holders of the Initial 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 Initial Debenture by
acceptance hereof assents.
The
Initial 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
Initial Debenture, provided that the principal amount of this Initial Debenture
is in a denomination in excess of $1,000, is convertible, at the option of
the
holder hereof, upon surrender of this Initial 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 Initial
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 Initial 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 $31.1068 (the "Conversion
Price") per Penn West Unit, being a rate of approximately 32.1473 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 on Penn
West
Units issuable upon conversion or for interest accrued on Initial Debentures
surrendered for conversion. If a Debenture is surrendered for
conversion on an Interest Payment Date or during the five preceding Business
Days, the person or persons entitled to receive Penn West Units in respect
of
the Debenture so surrendered for conversion shall not become the holder or
holders of record of such Penn West Units until the day following such Interest
Payment Date.
This
Initial Debenture may 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 Initial Debenture is not redeemable on or before
July 31, 2006, except in the event of the satisfaction of certain
conditions after a Change of Control has occurred. After July 31, 2006 and
on or prior to July 31, 2007, the Initial Debentures are redeemable at the
option of the Trust at a price equal to $1,050 per Debenture plus accrued
and
unpaid interest and otherwise on the terms and conditions described in
the
Indenture.
After July 31, 2007 and prior to maturity, the Initial Debentures are
redeemable at the option of the Trust at a price equal to $1,025 per Debenture
plus accrued and unpaid interest and otherwise on the terms and conditions
described in the Indenture. 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 Initial Debentures at a price equal
to 101%
of the principal amount of such Initial Debentures plus accrued and unpaid
interest up to, but excluding, the date the Initial 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 Initial Debentures on the same date
and at
the same price.
If
an offer is made to acquire outstanding Initial Debentures where, as of the
date
of the offer to acquire, the Initial Debentures subject to the offer to acquire,
together with the Initial Debentures beneficially owned or over which control
or
direction is exercised by the Offeror, the Associates and Affiliates of the
Offeror and any person acting jointly or in concert with the Offeror constitute
20% or more of the outstanding principal amount of Initial Debentures, and
90%
or more of the principal amount of all the Initial Debentures (other than
Initial Debentures held at the date of the offer to acquire 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 Initial 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 Initial 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 Initial Debenture due on the
Maturity Date by the issue of that number of Freely Tradable Penn West Units
obtained by dividing the principal amount of this Initial 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 Initial Debenture, and by all other Initial
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 (including any indebtedness to trade
creditors), whether outstanding at the date of the Indenture or thereafter
created, incurred, assumed or guaranteed.
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 Initial Debenture
or the Indenture.
The
Indenture contains provisions disclaiming any personal liability on the part
of
holders of Penn West Units, officers or agents of the Trust in respect of
any
obligation or claim arising out of the Indenture or this Debenture.
This
Initial 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 the City of Calgary or the City of Toronto
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 Initial 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 Initial
Debenture for cancellation. Thereupon a new Initial Debenture or Initial
Debentures in the same aggregate principal amount shall be issued to the
transferee in exchange hereof.
This
Initial 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 Initial Debenture shall, unless otherwise
defined herein, have the meaning ascribed thereto in the Indenture.
IN
WITNESS WHEREOF PENN WEST ENERGY
TRUST has caused this Debenture to be signed by its authorized
representatives 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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|
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By:
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DEBENTURE
TRUSTEE'S CERTIFICATE
This
Initial Debenture is one of the 9.40% Convertible Unsecured Subordinated
Debentures due July 31, 2008 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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REGISTRATION
PANEL
(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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FORM
OF ASSIGNMENT
FOR
VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
__________________________________, whose address and social insurance number,
if applicable, are set forth below, this Initial 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
Initial Debenture and does hereby irrevocably authorize and direct the Debenture
Trustee to transfer such Initial 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 Initial 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 an Initial Debenture
in
a non-integral multiple of $1,000 by reason of your having exercised your
right
to exchange upon the making of an Offer, in which case such Initial Debenture
is
transferable only in its entirety) to be transferred.
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1.
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The
signature(s) to this assignment must correspond with the name(s)
as
written upon the face of this Initial 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.
|
The
registered holder of this Initial 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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||
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Authorized
Officer
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Signature
of transferring registered holder
|
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Name
of Institution
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EXHIBIT
"1"
TO
CDS GLOBAL DEBENTURE
9.40%
CONVERTIBLE UNSECURED SUBORDINATED DEBENTURES
DUE
JULY 31, 2008
|
Initial
Principal Amount: $[•]
|
CUSIP:
000000XX0
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|
ISIN:
CA
707885AC32
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Authorization: ________________________
ADJUSTMENTS
|
Date
|
Amount
of Increase
|
Amount
of Decrease
|
New
Principal Amount
|
Authorization
|
