SIXTH SUPPLEMENTAL TRUST INDENTURE
SIXTH
SUPPLEMENTAL TRUST INDENTURE
This
Sixth Supplemental Trust Indenture is entered into as of this 30th day of
June, 2010.
AMONG:
PARAMOUNT 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 “PET” or the
“Trust”)
AND
PARAMOUNT ENERGY OPERATING
CORP., a corporation incorporated under the laws of the Province of
Alberta, with offices in Calgary, Alberta (hereinafter called “PEOC”)
AND
PERPETUAL ENERGY INC., a
corporation amalgamated under the laws of the Province of Alberta, with offices
in Calgary, Alberta (hereinafter called the “Corporation”)
AND
COMPUTERSHARE TRUST COMPANY OF
CANADA, a trust company incorporated under the laws of Alberta having an
office in the City of Calgary, in the Province of Alberta (hereinafter called
the “Debenture
Trustee”)
WITNESSETH
THAT:
WHEREAS
the PET, PEOC and the Debenture Trustee entered into (i) a trust indenture (the
“Principal Indenture”)
dated August 10, 2004 to provide for the creation and issuance of
debentures for the Trust’s investment purposes; and (ii) a third supplemental
trust indenture (the “Third Supplemental Indenture”) dated
June 20, 2007 to provide for the creation and issuance of 6.50% convertible
unsecured subordinated debentures due June 30, 2012 (the “Debentures”) (the Principal
Indenture and the Third Supplemental Indenture are, collectively, the “Indenture”);
AND
WHEREAS Article 16 of the Indenture provides that the Debenture Trustee and the
Trust may enter into indentures supplemental to the Indenture;
AND
WHEREAS pursuant to an arrangement among PET, PEOC and the Corporation effective
June 30, 2010, among other things, the Corporation wishes to assume the rights,
covenants and obligations of PET under the Indenture in accordance with the
terms thereof;
AND
WHEREAS the foregoing recitals are made as representations and statements of
fact by PET, PEOC and the Corporation, as applicable, and not by the Debenture
Trustee;
NOW
THEREFORE it is hereby covenanted, agreed and declared as follows:
ARTICLE 1
DEFINITIONS
AND AMENDMENTS TO INDENTURE
1.1 Definitions
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, “Common
Shares” means common shares of the Corporation.
1.2 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 and with regards to all matters governing the Debentures,
except as the Indenture is amended, superseded, 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 replacing PET
with its Successor, the
Corporation.
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(c)
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As
of and from the date hereof, the Indenture is amended by removing PET as a
party to the Indenture.
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(d)
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As
of and from the date hereof, the Indenture is amended by replacing PEOC
with the Corporation.
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(e)
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As
of and from the date hereof, the Indenture is amended by removing PEOC as
a party to the Indenture.
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(f)
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Reference
to “Trust Unit” in the Indenture shall be changed to refer to “Common
Share”.
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(g)
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Sections
2.16 and 17.2 of the Indenture be deleted in its
entirety.
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(h)
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References
to “Unitholder”, unitholder or unitholders in the Indenture shall be
changed to refer to “Shareholder”, shareholder or shareholders, as
applicable.
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(i)
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The
form of certificate for the Debentures 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 the Corporation executing such Debentures
in accordance with the Indenture.
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2
ARTICLE 2
SUCCESSOR
ENTITY
2.1 Assumption
of Obligations
The
Corporation hereby covenants and agrees to assume and does assume all of the
rights, covenants and obligations of the Trust in and to the Indenture and all
of the covenants and obligations of the 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
the Corporation entitling the holders thereof, as against the Corporation, to
all rights of Debentureholders under the Indenture.
ARTICLE 3
ADDITIONAL
MATTERS
3.1 Confirmation
of Indenture
The
Indenture, as amended and supplemented by this Supplemental Indenture, is in all
respects confirmed.
3.2 Governing
Law
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.
3.3 Further
Assurances
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.
3.4 Execution
by PEOC
The
parties hereto acknowledge that, except to the extent that PEOC is entering into
this Supplemental Indenture in its own right, it is entering into this
Supplemental Indenture on behalf of the Trust and the obligations of the Trust
hereunder shall not be personally binding upon the Trustee, PEOC, the
Corporation or any holder of Common Shares and that any recourse against the
Trust, the Trustee, PEOC, the Corporation or any holder of Common Shares in any
manner in respect of any indebtedness, obligation or liability of the Trust
arising hereunder or arising in connection herewith or from the matters to which
this Supplemental Indenture relates, if any, including without limitation claims
based on contract, on negligence, tortious behaviour or otherwise, shall be
limited to, and satisfied only out of, the assets of the Trust in accordance
with the amended and restated trust indenture made as at August 1, 2002 among
the Debenture Trustee, BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. and PEOC, as amended from time to
time.
3
3.5 Counterparts
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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PARAMOUNT ENERGY
TRUST, by Paramount Energy Operating Corp. (as
attorney-in-fact and agent of Computershare Trust Company of
Canada)
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By:
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(signed)
“▇▇▇▇▇▇▇
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Vice
President, Finance and Chief Financial Officer
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PARAMOUNT
ENERGY OPERATING CORP.
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By:
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(signed)
“▇▇▇▇▇▇▇
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Vice
President, Finance and Chief Financial Officer
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By:
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(signed)
“▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇”
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Vice
President, Finance and Chief Financial Officer
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COMPUTERSHARE
TRUST COMPANY OF CANADA
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By:
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(signed)
“▇▇▇▇▇▇
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By:
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(signed)
“▇▇▇▇▇▇
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4
SCHEDULE
“A”
TO
THE SIXTH SUPPLEMENTAL TRUST INDENTURE AMONG
PARAMOUNT
ENERGY TRUST, PARAMOUNT ENERGY OPERATING CORP.,
PERPETUAL
ENERGY INC. AND COMPUTERSHARE TRUST COMPANY OF CANADA
FORM
OF DEBENTURE
5
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 Perpetual Energy Inc. (the “Issuer”) its
successor 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 a property interest in the
securities represented by this certificate herein and it is a violation of its
rights for another person to hold, transfer or deal with this
certificate.
CUSIP ▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇
| No. · |
$·
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(A
corporation amalgamated under the laws of Alberta)
6.50%
CONVERTIBLE UNSECURED SUBORDINATED DEBENTURE
DUE
JUNE 30, 2012
PERPETUAL ENERGY INC. (the
“Corporation”) for value
received hereby acknowledges itself indebted and, subject to the provisions of
the trust indenture (the “Indenture”) dated as of August
10, 2004, as amended and supplemented by the third supplemental indenture (the
“Third Supplemental Indenture”) dated
as of June 20, 2007, as amended and supplemental by the sixth supplemental
indenture (the “Sixth
Supplemental Indenture”) dated as of June 30, 2010 among Paramount Energy
Trust, Paramount Energy Operating Corp., the Corporation and Computershare Trust
Company of Canada (the “Debenture Trustee”), promises
to pay to the registered holder hereof on June 30, 2012 or on such earlier date
as the principal amount hereof may become due in accordance with the provisions
of the Third Supplemental Indenture (the “Maturity Date”) the principal
sum of · Dollars
($·) 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, the Third Supplemental Indenture and
the Sixth 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 hereon, whichever is later, at the rate of 6.50% per annum, in like
money, in arrears in equal semi-annual instalments (less any tax required by law
to be deducted) of $32.50 per $1,000 of principal amount of the Debentures on
June 30 and December 31 in each year commencing on December 31, 2007 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 Corporation 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 or by
electronic transfer of funds to the registered holder hereof and, subject to the
provisions of the Indenture, the mailing of such cheque 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.
6
This
Debenture is one of the 6.50% Convertible Unsecured Subordinated Debentures
(referred to herein as the “Debenture”) of the Corporation
issued or issuable in one or more series under the provisions of the Indenture.
The Debentures authorized for issue immediately are limited to an aggregate
principal amount of $· in lawful money
of Canada. Reference is hereby expressly made to the Indenture, the
Third Supplemental Indenture and the Sixth Supplemental 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 Corporation 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 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
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
Common Shares (without adjustment for interest accrued hereon or for dividends
or distributions on Common Shares issuable upon conversion) at a conversion
price of $14.20 (the “Conversion Price”) per Common
Share, being a rate of approximately 70.4225 Common Shares for each $1,000
principal amount of Debentures, all subject to the terms and conditions and in
the manner set forth in the Indenture. No Debentures may be converted
during the three Business Days preceding and including June 30 and December
31 in each year, as the registrars of the Debenture Trustee will be closed
during such periods. The Indenture makes provision for the adjustment
of the Conversion Price in the events therein specified. No fractional Common
Shares will be issued on any conversion but in lieu thereof, the Corporation
will satisfy such fractional interest by a cash payment equal to the market
price of such fractional interest determined in accordance with the
Indenture. Holders converting their Debentures will receive accrued
and unpaid interest thereon. If a Debenture is surrendered for conversion on an
Interest Payment Date or during the three preceding Business Days, the person or
persons entitled to receive Common Shares in respect of the Debenture so
surrendered for conversion shall not become the holder or holders of record of
such Common Shares until the Business Day following such Interest Payment
Date.
This
Debenture may be redeemed at the option of the Corporation 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
June 30, 2010, except in the event of the satisfaction of certain
conditions after a Change of Control has occurred. After June 30,
2010, and on or prior to June 30, 2011, the Debentures are redeemable at
the option of the Corporation at a price equal to $1,050 per $1,000 principal
amount of Debentures and, in addition thereto, at the time of redemption, the
Corporation shall pay to the holder accrued and unpaid interest and otherwise on
the terms and conditions described in the Indenture. After
June 30, 2011, and prior to maturity, the Debentures are redeemable at the
option of the Corporation at a price equal to $1,025 per $1,000 principal amount
of Debentures and, in addition thereto, at the time of redemption, the
Corporation shall pay to the holder accrued and unpaid interest and otherwise on
the terms and conditions described in the Indenture. The Corporation
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
Common Shares obtained by dividing the applicable Redemption Price by 95% of the
weighted average trading price of the Common Shares on the Toronto Stock
Exchange for the 20 consecutive trading days ending on the fifth trading day
preceding the Redemption Date.
7
Upon the
occurrence of a Change of Control of the Corporation, the Corporation 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
(if any) 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
Corporation provides notice of a Change of Control to the Debenture Trustee have
been tendered for purchase pursuant to the Offer, the Corporation 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 Applicable Securities
Legislation, is made and 90% or more of the principal amount of all the
debentures issued pursuant to the Indenture (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 issued pursuant to the Third Supplemental Indenture and the Sixth
Supplemental Indenture.
The
Corporation 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 Common Shares
obtained by dividing the principal amount of this Debenture to be paid for in
Common Shares pursuant to the exercise by the Corporation of the Common Share
Repayment Right by 95% of the weighted average trading price of the Common
Shares 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 Corporation, 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 that the Corporation may, at any time and from
time to time, in its sole discretion, request that the Debenture Trustee make
reasonable efforts, as practicable in the circumstances, to obtain declarations
as to beneficial ownership of Debentures, perform residency searches of holders
of Debentures and beneficial holders of Debentures mailing address lists and
take such other steps specified by the Corporation to determine or estimate as
best possible the residence of the beneficial owners of
Debentures. If at any time the board of directors of the Corporation,
in its sole discretion, determines that it is in the best interest of the
Corporation, the Corporation may: (i) require the Debenture Trustee to
refuse to accept a subscription for the Debentures from, or issue or register a
transfer of Common Shares to, a person unless the person provides a declaration
to the Corporation that the Debentures to be issued or transferred to such
person will not when issued or transferred be beneficially owned by a non
resident of Canada; (ii) to the extent practicable in the circumstances,
send a notice to registered holders of the Debentures which are beneficially
owned by non-residents of Canada, chosen in inverse order to the order of
acquisition or registration of such Debentures beneficially owned by
non-residents of Canada or in such other manner as the Corporation may consider
equitable and practicable, requiring them to sell their Debentures which are
beneficially owned by non-residents of Canada or a specified portion thereof
within a specified period of not less than 60 days. If the holders of
Debentures receiving such notice have not sold the specified number of such
Debentures or provided the Corporation with satisfactory evidence that such
Debentures are not beneficially owned by non-residents within such period, the
Corporation may, on behalf of such registered holder of Debentures, sell such
Debentures and, in the interim, suspend the rights attached to such Debentures;
and (iii) take such other actions as the board of directors of the
Corporation determines, in its sole discretion, are appropriate in the
circumstances that will reduce or limit the number of Debentures held by
non-residents to ensure that the Corporation is not maintained primarily for the
benefit of non-residents of Canada.
8
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 Common Shares, officers and directors of the Corporation or other
agents of the Corporation 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
Corporation 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. Thereupon a new Debenture or Debentures in the same aggregate
principal amount shall be issued to the transferee in exchange
hereof.
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, the Third
Supplemental Indenture and the Sixth Supplemental Indenture.
IN WITNESS WHEREOF PERPETUAL ENERGY
INC. has caused this Debenture to be signed by its authorized
representatives as of the 30th day of June, 2010.
9
(FORM
OF TRUSTEE’S CERTIFICATE)
This
Initial Debenture is one of the 6.50% Convertible Unsecured Subordinated
Debentures due June 30, 2012 referred to in the Indenture within
mentioned.
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COMPUTERSHARE
TRUST COMPANY OF CANADA
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By:
(Authorized Officer) |
(FORM
OF REGISTRATION PANEL)
(No
writing hereon except by 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 Trustee or ▇▇▇▇▇▇▇▇▇
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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 PERPETUAL ENERGY INC. standing in the name(s) of
the undersigned in the register maintained by the Corporation with respect to
such Initial Debenture and does hereby irrevocably authorize and direct the
Trustee to transfer such Initial Debenture in such register, with full power of
substitution in the premises.
Dated: _____________________________________________________________________________________________________________
Address
of
Transferee: ________________________________________________________________________________
(▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇ 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 a Change of Control Purchase Offer, in which case
such Initial 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 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”.
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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Authorized
Officer
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Signature
of transferring registered holder
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Name
of Institution
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11
EXHIBIT
“1”
TO
CDS GLOBAL DEBENTURE
6.50%
CONVERTIBLE UNSECURED SUBORDINATED DEBENTURES
DUE
JUNE 30, 2012
| Initial Principal Amount: $· |
CUSIP
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▇▇▇▇ ▇▇
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Authorization: ________________________
ADJUSTMENTS
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Date
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Amount
of Increase
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Amount
of Decrease
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New
Principal Amount
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Authorization
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12