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EXHIBIT 3.1
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PENGROWTH CORPORATION
- AND -
COMPUTERSHARE TRUST COMPANY
OF CANADA
______________________________________________________________
AMENDED AND RESTATED TRUST INDENTURE PENGROWTH ENERGY TRUST
JUNE 11, 2007
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TABLE OF CONTENTS
ARTICLE I INTERPRETATION......................................................2
1.01 Definitions.......................................................2
1.02 Definitions in Royalty Indenture and in Schedules.................8
1.03 References to Acts Performed by the Fund..........................8
1.04 Gender............................................................8
1.05 Headings for Reference Only.......................................8
1.06 Day Not a Business Day............................................8
1.07 Time of the Essence...............................................9
1.08 Governing Law.....................................................9
1.09 References........................................................9
ARTICLE II DECLARATION OF TRUST...............................................9
2.01 Trust Agreement...................................................9
2.02 Initial Contribution..............................................9
2.03 Name of Fund......................................................9
2.04 Use of Name.......................................................9
2.05 Head Office......................................................10
2.06 Nature of the Fund...............................................10
2.07 Liability of Unitholder..........................................10
2.08 Contracts of the Fund............................................10
ARTICLE III ISSUE OF UNITS...................................................11
3.01 Units............................................................11
3.02 Special Voting Unit..............................................11
3.03 Limit of Issue...................................................12
3.04 Form and Terms of Units..........................................12
3.05 Ranking of Units.................................................13
3.06 Units Non-Assessable.............................................13
3.07 Fractional Units.................................................13
3.08 Legal Ownership of Assets of the Fund............................13
3.09 Purchase of Initial Unit by Fund.................................14
3.10 Transferability of Units.........................................14
3.11 Rights, Warrants and Options.....................................14
ARTICLE IV INVESTMENTS OF TRUST FUND.........................................14
4.01 Initial Investments..............................................14
4.02 Other Investments................................................14
ARTICLE V DISTRIBUTIONS......................................................15
5.01 Distributions....................................................15
5.02 Crown Obligations................................................15
5.03 Income of the Fund...............................................15
5.04 Method of Payment of Distributions...............................15
5.05 Distributions Deemed as to Net Income or Capital.................15
5.06 Obligations of Corporation.......................................16
ARTICLE VI EXCHANGE OF ROYALTY UNITS.........................................16
6.01 Exchange Right...................................................16
6.02 Exercise of Exchange Right.......................................16
6.03 Issue of Royalty Unit Certificates...............................17
ARTICLE VII REDEMPTION OF UNITS..............................................18
7.01 Redemption of Units..............................................18
7.02 Payment of Redemption Price......................................18
7.03 Distribution in Specie...........................................18
ARTICLE VIII APPOINTMENT, RESIGNATION AND REMOVAL OF TRUSTEE.................19
8.01 Trustee's Term of Office.........................................19
8.02 Resignation of Trustee...........................................19
8.03 Removal of Trustee...............................................19
8.04 Appointment of Successor to Trustee..............................19
8.05 Failure to Appoint Successor.....................................20
8.06 Qualifications of Trustee........................................20
ARTICLE IX CONCERNING THE TRUSTEE............................................20
9.01 Powers of the Trustee............................................20
9.02 Specific Powers and Authorities..................................20
9.03 Restriction on Powers............................................24
9.04 Voting of Royalty Units and Common Shares Held by the Fund.......24
9.05 Banking..........................................................24
9.06 Standard of Care.................................................24
9.07 Fees and Expenses................................................25
9.08 Limitations on Liability of Trustee..............................25
9.09 Indemnification of Trustee.......................................25
9.10 Environmental Indemnity..........................................26
ARTICLE X DELEGATION OF POWERS...............................................27
10.01 The Manager...................................................27
10.02 The Corporation...............................................27
10.03 Power of Attorney.............................................28
10.04 Liability of Trustee..........................................28
10.05 Performance of Obligations....................................28
10.06 Certificate of Compliance.....................................28
ARTICLE XI AMENDMENT.........................................................29
11.01 Amendment.....................................................29
11.02 Notification of Amendment.....................................29
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ARTICLE XII MEETINGS OF UNITHOLDERS..........................................30
12.01 Annual and Special Meetings of Unitholders....................30
12.02 Notice of Meetings............................................30
12.03 Quorum........................................................30
12.04 Voting Rights of Unitholders..................................31
12.05 Resolutions Binding the Trustee...............................31
12.06 Meaning of "Extraordinary Resolution" and
"Ordinary Resolution"......................................32
12.07 Record Date for Voting........................................33
12.08 Appointment of Inspector......................................33
12.09 Resolutions in Writing........................................33
ARTICLE XIII CERTIFICATES, REGISTRATION AND TRANSFER OF UNITS................34
13.01 Nature of Units...............................................34
13.02 Certificates..................................................34
13.03 Contents of Certificate.......................................34
13.04 Registers of Unitholders......................................35
13.05 Successors of Unitholders.....................................35
13.06 Units Held Jointly or in a Fiduciary Capacity.................35
13.07 Performance of Trust..........................................36
13.08 Lost Certificates.............................................36
13.09 Death of a Unitholder.........................................36
13.10 Unclaimed Interest or Distribution............................37
ARTICLE XIV TERMINATION......................................................37
14.01 Termination Date..............................................37
14.02 Termination by Trustee with the Approval of Unitholders.......37
14.03 Procedure Upon Termination....................................37
14.04 Powers of the Trustee upon Termination........................37
14.05 Sale of Investments...........................................38
14.06 Distribution of Proceeds......................................38
14.07 Redemption and Termination by Other Disposition...............38
14.08 Further Notice to Unitholders.................................38
14.09 Responsibility of Trustee after Sale and Conversion...........39
ARTICLE XV SUPPLEMENTAL INDENTURES...........................................39
15.01 Provision for Supplemental Indentures for
Certain Purposes...........................................39
ARTICLE XVI GENERAL..........................................................40
16.01 Notices.......................................................40
16.02 Failure to Give Notice........................................40
16.03 Joint Holders.................................................40
16.04 Service of Notice.............................................40
16.05 Information Available to Unitholders..........................41
16.06 Income Tax: Obligations of the Trustee.......................41
16.07 Income Tax: Designations.....................................41
16.08 Income Tax Deductions.........................................41
16.09 Fiscal Year...................................................41
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ARTICLE XVII AUDITORS........................................................41
17.01 Qualification of Auditors.....................................41
17.02 Appointment of Auditors.......................................42
17.03 Change of Auditors............................................42
17.04 Reports of Auditors...........................................42
ARTICLE XVIII MISCELLANEOUS..................................................42
18.01 Successors and Assigns........................................42
18.02 Counterparts..................................................42
18.03 Severability..................................................42
18.04 Notice to Trustee.............................................42
18.05 Notice to Corporation.........................................43
AMENDED AND RESTATED TRUST INDENTURE - PENGROWTH ENERGY TRUST
THIS AMENDED AND RESTATED TRUST INDENTURE is made as of the 11th day of
June, 2007, and is an amendment and restatement of the Trust Indenture dated
December 2, 1988 as amended by successive Supplemental Trust Indentures and
other amendments, as previously amended and restated on July 27, 2006.
BETWEEN:
PENGROWTH CORPORATION, a body corporate incorporated under the
laws of the Province of Alberta with offices in the City of
Calgary, in the Province of Alberta (hereinafter called the
"CORPORATION")
AND
COMPUTERSHARE TRUST COMPANY OF CANADA, a trust company
incorporated under the laws of Canada, with offices in the City
of Calgary, in the Province of Alberta (hereinafter called the
"TRUSTEE")
WITNESSETH THAT:
WHEREAS the Corporation has agreed with the Trustee to create and issue
Royalty Units pursuant to the Royalty Indenture;
WHEREAS the Corporation has granted to the Royalty Unitholders the
Royalty pursuant to the Royalty Indenture;
WHEREAS the Corporation desires to create a trust for the purpose of
facilitating an indirect investment in Permitted Investments by certain
investors;
WHEREAS for the purpose of settling the Fund, the Corporation has paid
to the Trustee an amount of ten dollars in lawful money of Canada;
WHEREAS the Trustee has agreed to hold the Initial Contribution and all
amounts subsequently received under this Indenture in trust;
WHEREAS the Corporation and the Trustee desire that the beneficiaries
of the Fund, other than the Corporation with respect to the Initial
Contribution, shall be the holders of Units (evidenced by certificates therefor
as hereinafter provided);
WHEREAS it is intended that the Fund shall invest the proceeds of the
amounts subscribed for the purchase of Units in Permitted Investments;
WHEREAS it is desirable that the Fund shall qualify as a "unit trust"
and as a "mutual fund trust" under the provisions of subsections 108(2) and
132(6) of the INCOME TAX Act (Canada) (the "ACT"), respectively, and the
Corporation shall have the sole responsibility for and intends to use its best
efforts to take such action and make such provisions as may be required to
effect and maintain such qualification;
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WHEREAS it is intended to offer the Units for sale to members of the
public and for that purpose the Corporation and the Fund have caused to be
prepared and intend to cause to be filed the Prospectus;
WHEREAS the Corporation and the Trustee desire to declare the trusts,
terms and conditions upon which the Trustee agrees to hold the Initial
Contribution and all future property acquired by the Trustee in accordance with
this Indenture; and
WHEREAS the parties hereto desire to set out certain additional
agreements, terms and conditions which shall govern their mutual and respective
rights, powers and obligations with respect to the settlement and the
administration of the Fund;
NOW THEREFORE THIS INDENTURE WITNESSETH that, in consideration of the
premises and the mutual and respective covenants and agreements contained
herein, the Trustee covenants and agrees with the Corporation and the
Corporation covenants and agrees with the Trustee as follows:
ARTICLE I
INTERPRETATION
1.01 DEFINITIONS
In this Indenture, the Schedules and the Unit Certificates, unless the
context otherwise requires, the following terms shall have the following
meanings:
a) "ACT" means the INCOME TAX ACT (Canada), together with any and all
regulations promulgated thereunder, as amended from time to time;
b) "ADMINISTRATOR" means the Person referred to in Article X;
c) "AFFILIATE" has the meaning ascribed thereto in the SECURITIES ACT
(Alberta);
d) "AGENCY AGREEMENT" means an agreement between the Corporation, the Fund
and a dealer or underwriter whereby the dealer or underwriter agrees to
sell Royalty Units and Units to the public for and on behalf of the
Corporation and the Fund and to which others may be a part (the dealer
or underwriter being referred to herein as the "AGENT");
e) "AMENDED TAX RULING" means, collectively, the advance income tax
rulings dated December 15, 1988 and December 15, 1998 received by legal
counsel to the Corporation and the Fund from the Canada Customs and
Revenue Agency (formerly named Revenue Canada);
f) "ARC" has the meaning ascribed thereto in the Royalty Indenture;
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g) "APPLICABLE EXCHANGE" means the exchange designated by the Directors
from time to time;
h) "ASSOCIATE" has the meaning ascribed thereto in the SECURITIES ACT
(Alberta);
i) "AUDITORS" means KPMG LLP or such other firm of chartered accountants
as may be appointed as auditor or auditors of the Fund, by or in
accordance with Article XVII;
j) "AVAILABLE REDEMPTION FUNDS" means, in respect of the Redemption
Payment Date, the sum of:
i) all amounts received by the Fund in respect of the
distributions on or in respect of the Royalty Units since the
immediately preceding Redemption Payment Date, and
ii) all other income received by the Fund since the immediately
preceding Redemption Payment Date,
less the sum of
iii) without duplication, all expenses paid or incurred in respect
of the administration of the Fund, including without limitation
the fees earned by the Trustee in connection with the
administration of its duties hereunder or under the Royalty
Indenture, incurred since the immediately preceding Redemption
Payment Date;
k) "BUSINESS DAY" means any day other than a day on which the main office
of the Trustee in the City of Calgary is not open for business;
l) "CLASS A UNITS" means the Class A Trust Units of the Fund, created,
issued and certified hereunder which, other than those Class A Units
for which an election and Unitholder's Declaration was provided, shall
be converted to Trust Units at the Reorganization Time in accordance
with, and subject to the exceptions set out in, Schedule "C" hereof;
m) "CLASS B UNITS" means the Class B Trust Units of the Fund, created,
issued and certified hereunder which, at the Reorganization Time, shall
be renamed as Trust Units in accordance with Schedule "C" hereof;
n) "CLOSING MARKET PRICE" means in respect of the Trust Units:
i) the amount equal to the closing price of the Trust Units on the
Applicable Exchange if there was a trade on such date;
ii) if the Applicable Exchange does not provide for a closing price
for the Trust Units, an amount equal to the average of the
highest and lowest prices of the Trust Units on the Applicable
Exchange if there was trading on such date; or
iii) if there was not trading on such date, the average of the last
bid and last ask prices of the Trust Units on the Applicable
Exchange;
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o) "COUNSEL" means a law firm (who may be counsel to the Corporation)
acceptable to the Trustee;
p) "DATE OF CLOSING" means the day that may be agreed upon by the
Corporation, the Trustee and the Agent upon the closing of any
authorized issuance of Royalty Units and/or Units pursuant to an Agency
Agreement and the "Original Date of Closing" means the "Date of
Closing" with respect to the first issuance of Units pursuant to this
Trust Indenture;
q) "DIRECTORS" means the board of directors of the Corporation;
r) "DISTRIBUTABLE CASH" means, for any particular period, all income
received by the Trustee on behalf of the Unitholders in respect of the
Trust Fund, including without limitation, (a) all amounts received by
the Trustee in respect of a Royalty, (b) all ARC received by the
Trustee on behalf of the Fund, and (c) all other income received by the
Trustee from the investments of the Trust Fund, less the sum of (i) all
Reimbursed Crown Charges paid by the Fund by way of set off or
otherwise, (ii) any other amounts (including without limitation, taxes)
required by law to be deducted, withheld or paid, and (iii) without
duplication of any other amount already deducted from the Royalty or
otherwise in determining Distributable Cash, all general and
administrative expenses, management fees, debt repayments and/or other
expenses of the Fund;
s) "EXCHANGEABLE SHARES" means shares in the capital of the Corporation,
which may be issued from time to time, and including the right to be
exchanged by the holder thereof into one or more classes of Units;
t) "EXTRAORDINARY RESOLUTION" has the meaning attributed to it in
subsection 12.06(a);
u) "FUND" means Pengrowth Energy Trust;
v) "INITIAL CONTRIBUTION" means the amount of ten dollars in lawful money
of Canada paid by the Corporation to the Trustee on the 2nd day of
December, 1988 for the purpose of settling the Fund;
w) "INITIAL UNIT" means the beneficial interest in the Fund acquired by
the Corporation by virtue of making the Initial Contribution;
x) "INSPECTOR" has the meaning set out in Section 12.08 hereof;
y) "MANAGEMENT AGREEMENT" means the Amended and Restated Management
Agreement made and in force from time to time among the Corporation,
the Fund, the Trustee and Pengrowth Management Limited;
z) "MANAGER" means the Person referred to in Article X;
aa) "MARKET PRICE" means the amount equal to the simple average of the
closing price of the Trust Units for each of the ten trading days on
the Applicable Exchange or other market on which the Trust Units are
quoted for trading and on which there was a closing price; provided
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that if the Applicable Exchange or other market does not provide a
closing price but only provides the highest and lowest prices of the
Trust Units traded on a particular day, then the "closing price" shall
be an amount equal to the simple average of the highest and lowest
prices for that trading day if there was a trade; and provided further
that if there was a trade on the Applicable Exchange or other market
for fewer than five of the ten trading days, then the Market Price
shall be the simple average of the Closing Market Price on each of the
ten trading days;
bb) "MATERIAL CONTRACTS" means this Indenture, the Management Agreement,
the Unanimous Shareholder Agreement and the Royalty Indenture;
cc) "NON-RESIDENT" means a person who is a "non-resident" for the purpose
of the Act;
dd) "ORDINARY RESOLUTION" has the meaning attributed to it in subsection
12.06(b);
ee) "PERMITTED INVESTMENTS" means all property, assets and rights which may
be held from time to time by a "mutual fund trust" under the provisions
of subsection 132(6) of the Act, including without limitation:
i) the Initial Contribution;
ii) all funds realized from the sale of Units;
iii) all Royalty Units from time to time delivered to the Trustee or
held for its account;
iv) all rights in respect of Royalty Agreements or Royalties and
other royalties to the extent they are permitted investments of
a mutual fund trust under the provisions of subsection 132(6)
of the Act;
v) shares, units, interests and other investments in corporations,
partnerships (whether general or limited), trusts and other
types of companies, associations, entities and ventures;
vi) debt or debt instruments issued by any issuer;
vii) rights in and to any real property;
viii) any proceeds of disposition of any of the foregoing property;
and
ix) all income, interest, profit, gains and accretions and
additional rights arising from or accruing to such foregoing
property or such proceeds of disposition;
ff) "PERSON" includes any natural person, corporation, limited partnership,
general partnership, joint stock property, joint venture, association,
company, limited liability company, trust, bank, trust company or other
organization, whether or not a legal entity, and government authority;
gg) "PRIOR TRUST UNITS" means the trust units of the Fund currently
issued and outstanding not comprising Class A Units or Class B Units,
which, at the Reorganization Time, will be converted to Trust Units in
accordance with Schedule "C" hereof;
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hh) "PRO RATA SHARE" of any particular amount in respect of a Unitholder at
any time shall be the product obtained by multiplying the number of
Units that are outstanding and are owned by that Unitholder at that
time by the amount obtained when the particular amount is divided by
the total number of all Units that are issued and outstanding at that
time;
ii) "REDEMPTION PAYMENT DATE" means, in respect of any calendar month in
which the Fund receives the redemption request and other documents
specified in Section 7.01, the last day of the following month;
jj) "REDEMPTION PRICE" means the lesser of: (i) 95% of the Market Price of
the Trust Units on the principal market on which the Trust Units are
quoted for trading during the 10 trading day period commencing
immediately after the date on which the Class A Units or Trust Units
are surrendered for redemption; and (ii) the Closing Market Price on
the principal market on which the Trust Units are quoted for trading on
the date that the Class A Units or Trust Units are surrendered for
redemption;
kk) "REIMBURSED CROWN CHARGES" has the meaning ascribed thereto in the
Royalty Indenture;
ll) "REORGANIZATION TIME" means 5:00 p.m. (Calgary time) on July 27, 2006;
mm) "REPLACEMENT PROPERTIES" has the meaning ascribed thereto in the
Royalty Indenture;
nn) "ROYALTY" means the interest in the Royalty Income held by the Trustee
on behalf of the Unitholders pursuant to a Royalty Agreement whether by
virtue of holding Royalty Units or otherwise;
oo) "ROYALTY AGREEMENTS" means the Royalty Indenture and subsequent royalty
indentures or royalty agreements pursuant to which the Trustee may
receive royalty income on behalf of the Unitholders;
pp) "ROYALTY INCOME" in respect of income to the Trustee on behalf of the
Unitholders arising in respect of the Royalty Indenture has the meaning
attributed thereto in the Royalty Indenture, and in respect of income
arising under a Royalty Agreement other than the Royalty Indenture
means royalty income arising under such Royalty Agreement;
qq) "ROYALTY INDENTURE" means the Amended and Restated Royalty Indenture
between the Corporation, the Trustee on behalf of the Royalty
Unitholders and the Trustee on behalf of the Unitholders providing for
the creation of the Royalty and issue of the Royalty Units;
rr) "ROYALTY UNIT CERTIFICATES" means definitive certificates evidencing
Royalty Units;
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ss) "ROYALTY UNITHOLDERS" means the holders from time to time of one or
more Royalty Units;
tt) "ROYALTY UNITS" means royalty units of the Corporation issued and
certified under the Royalty Indenture;
uu) "SCHEDULES" means the schedules to this Indenture;
vv) "SHAREHOLDERS" means the holders of Shares of the Corporation;
ww) "SHARES" means the shares of the Corporation of any class from time to
time outstanding;
xx) "SPECIAL VOTING UNIT" means the Special Voting Unit of the Fund, if
any, for the time being created, issued and certified hereunder;
yy) "SPECIAL VOTING UNITHOLDER" means the holder from time to time of the
Special Voting Unit;
zz) "TIME OF CLOSING" means 8:00 o'clock in the morning (Calgary time) on
the Date of Closing or such other time on such date as the Corporation,
the Trustee and the Agents may agree upon;
aaa) "TRUST FUND", at any time, shall mean the Permitted Investments that
are at such time held by the Trustee for the benefit of the Unitholders
and for the purposes of the Fund under this Trust Indenture;
bbb) "TRUST UNITS" means the trust units of the Fund created, issued and
certified hereunder, which, at the Reorganization Time, shall be
outstanding upon the renaming of the Class B Units as Trust Units and
issued upon the conversion of the Prior Trust Units and Class A Units
for Trust Units, all in accordance with, and subject to, Schedule "C"
hereof;
ccc) "UNANIMOUS SHAREHOLDER AGREEMENT" means the Amended and Restated
Unanimous Shareholder Agreement made the date hereof among the
Pengrowth Management Limited, the Fund, the Corporation and the
Trustee;
ddd) "UNIT CERTIFICATE" means the definitive certificate evidencing Units;
eee) "UNITHOLDER'S DECLARATION" means a declaration regarding the residency
of a Unitholder, any beneficial owner(s) or any other person of whom it
is, in the circumstances, reasonable to make such request, made in
accordance with Schedule "C" hereof;
fff) "UNITHOLDERS" means the holders from time to time of one or more Units
and, for the purposes of Sections 5.06(b), 14.02, 14.03, 14.08, 16.01,
16.02, 16.05, 16.06, 16.07, 16.08, 17.02, 17.03 and 17.04 hereof and
Articles XI and XII hereof, and the definitions of "Ordinary
Resolution" and "Extraordinary Resolution" herein, Unitholders shall
also include the Special Voting Unitholder;
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ggg) "UNITS" means the units of the Fund created, issued and certified
hereunder, including, but not limited to, the Prior Trust Units, the
Class A Units, the Class B Units and, after the Reorganization Time,
the Class A Units and the Trust Units, provided that the term "Unit"
shall not include the Special Voting Unit except where the term "Unit"
is used in the definitions of "Ordinary Resolution" and "Extraordinary
Resolution" and in Sections 14.02, 14.03, 14.08 and 16.05 hereof and
Articles XI and XII hereof;
hhh) "YEAR" means a calendar year; and
iii) "THIS TRUST INDENTURE", "THIS INDENTURE", "HERETO", "HEREIN", "HEREOF",
"HEREBY", "HEREUNDER" and similar expressions refer to this instrument
and the Schedules and not to any particular Article, section or portion
hereof, and include any and every instrument supplemented or ancillary
hereto or in implement hereof.
1.02 DEFINITIONS IN ROYALTY INDENTURE AND IN SCHEDULES
Unless the context otherwise requires, where terms defined in the
Royalty Indenture are used herein without definition the definitions set out in
the Royalty Indenture shall apply to this Indenture.
Unless the context otherwise requires, where terms defined in the
Schedules are used herein without definition the definitions set out in the
Schedules shall apply to this Indenture.
1.03 REFERENCES TO ACTS PERFORMED BY THE FUND
For greater certainty, where any reference is made in this Indenture to
an act to be performed by the Fund, such reference shall be construed and
applied for all purposes as if it referred to an act to be performed by the
Trustee on behalf of the Fund.
1.04 GENDER
In this Indenture, unless herein otherwise expressly provided or unless
the context otherwise requires, words importing the singular number only shall
include the plural, and vice-versa, and words importing the masculine gender
shall include the feminine and neuter genders and words importing persons shall
include an individual, partnership, association, body corporate, trustee,
executor, administrator or legal representative.
1.05 HEADINGS FOR REFERENCE ONLY
The division of this Indenture into Articles and Sections, the
provision of a Table of Contents and the insertion of headings are for
convenience of reference only and shall not affect the construction or
interpretation of this Indenture.
1.06 DAY NOT A BUSINESS DAY
In the event that any day on or before which any amount is to be
determined or any action is required to be taken hereunder is not a Business
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Day, then such amount shall be determined or such action shall be required to
be taken at or before the requisite time on the next succeeding day that is a
Business Day.
1.07 TIME OF THE ESSENCE
Time shall be of the essence in this Indenture.
1.08 GOVERNING LAW
This Indenture and the Unit Certificates 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 Alberta contracts.
The parties hereto do hereby irrevocably submit and attorn to the jurisdiction
of the Courts of the Province of Alberta.
1.09 REFERENCES
Unless otherwise specified herein, reference herein to any contract,
agreement, legislation, regulation or rule shall be a reference to such
contract, agreement, legislation, regulation or rule as amended from time to
time.
ARTICLE II
DECLARATION OF TRUST
2.01 TRUST AGREEMENT
The Trustee hereby declares that it agrees to, and agrees with the
Corporation that it will, hold the Trust Fund in trust for the use and benefit
of the Unitholders, their permitted assigns and personal representatives upon
the trusts and subject to the terms and conditions hereinafter declared and set
forth.
2.02 INITIAL CONTRIBUTION
The Corporation hereby pays the Initial Contribution to the Trustee for
the purpose of settling the Fund.
2.03 NAME OF FUND
The Fund shall be known and designated as "Pengrowth Energy Trust" and,
whenever lawful and convenient, the affairs of the Fund shall be conducted and
transacted under that name.
2.04 USE OF NAME
If the Trustee determines that the use of the name "Pengrowth Energy
Trust" is not practicable, legal or convenient, it may use such other
designation or it may adopt such other name for the Fund as it deems
appropriate and the Fund may hold property and conduct its activities under
such other designation or name.
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2.05 HEAD OFFICE
The head office of the Fund hereby created shall be located at ▇▇▇▇▇
▇▇▇▇, ▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, or such other place or
places as the Trustee may from time to time designate.
2.06 NATURE OF THE FUND
The Fund is an unincorporated investment trust established for the
purpose of purchasing, holding and dealing with Permitted Investments. The Fund
is not and is not intended to be, shall not be deemed to be and shall not be
treated as a general partnership, limited partnership, syndicate, association,
joint venture, company, corporation or joint stock company nor shall the
Trustee or the Unitholders or any of them or any Person be, or be deemed to be,
treated in any way whatsoever liable or responsible hereunder as partners, or
joint venturers. The Trustee shall not be, or be deemed to be, an agent of the
Unitholders. The relationship of the Unitholders to the Trustee shall be solely
that of beneficiaries of the Fund and their rights shall be limited to those
conferred upon them by this Trust Indenture.
2.07 LIABILITY OF UNITHOLDER
No Unitholder shall be subject to any personal liability whatsoever, in
tort, contract or otherwise, to any Person in connection with Fund property or
the obligations or the affair of the Fund nor shall any Unitholder be liable to
indemnify the Trustee or any other Person with respect to any such liability or
liabilities and all such Persons shall look solely to the Fund property for
satisfaction of claims of any nature arising out of or in connection therewith
and the Fund property only shall be subject to levy or execution.
2.08 CONTRACTS OF THE FUND
Every contract entered into by or on behalf of the Fund, whether by the
Trustee, the Manager, the Administrator or otherwise, shall (except as the
Trustee, the Manager or the Administrator may otherwise expressly agree in
writing with respect to their own personal liability) include a provision
substantially to the following effect:
"The parties hereto acknowledge that the (Trustee) (Manager)
(Administrator) is entering into this agreement solely in its
capacity as (Trustee) (Manager) (Administrator) on behalf of
the Fund and the obligations of the Fund hereunder shall not be
personally binding upon the (Manager) (Trustee) (Administrator)
or any of the Unitholders of the Fund and that any recourse
against the Fund the (Trustee) (Manager) (Administrator) or any
Unitholder in any manner in respect of any indebtedness,
obligation or liability of the Fund arising hereunder or
arising in connection herewith or from matters to which this
agreement relates, in any way, including without limitation
claims based on negligence or otherwise tortious behaviour,
shall be limited to, and satisfied only out of, the Trust Fund
as defined in the Trust Indenture."
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The omission of such a provision from any such written instrument shall
not operate to impose personal liability on the Trustee, the Manager, the
Administrator or any Unitholder.
ARTICLE III
ISSUE OF UNITS
3.01 UNITS
The beneficial interests in the Fund shall be divided into interests of
one or more class, described and designated as Units, which shall be entitled
to the rights and subject to the limitations, restrictions and conditions set
out herein, as supplemented or amended by the rights, limitations, restrictions
and conditions applicable to a given class of Units as set out in the Schedules
to this Indenture, and which may be represented by installment receipts.
Subject to subsection 104(7.1) of the Act, the Fund shall be entitled to issue
Units in different classes with each class having the rights, conditions and
privileges attached thereto as determined by the Directors of the Corporation
at the time of issuance provided that the Fund shall have obtained such
opinions or advice as the Directors may consider appropriate from legal,
accounting or investment advisors to the effect that the issuance of different
classes of Units will not materially adversely affect existing Unitholders nor
adversely affect the application of the Amended Tax Ruling.
The Fund shall have two classes of Units, consisting of the Class A
Units and the Trust Units, each such class shall be entitled to the rights and
subject to the limitations, restrictions and conditions set out herein, and, in
the case of the Class A Units, as supplemented or amended by the rights,
limitations, restrictions and conditions set out in Schedule "A" and in the
case of the Trust Units as supplemented or amended by the rights, limitations,
restrictions and conditions set out in Schedule "B". The provisions of
Schedules "A", "B" and "C" shall take precedence over any provision to the
contrary in this Indenture.
3.02 SPECIAL VOTING UNIT
In addition to the Units, the Fund may issue the Special Voting Unit
which, notwithstanding anything contained in this Indenture, shall have the
following rights, privileges, restrictions and conditions:
a) the Special Voting Unit shall entitle the registered holder thereof at
the record date for any meeting of Unitholders to a number of votes
equal to the number of outstanding Exchangeable Shares (excluding
Exchangeable Shares held by the Fund and its Subsidiaries) at such
meeting;
b) the Special Voting Unit shall not entitle the holder thereof to
participate in distributions from the Fund;
c) the Special Voting Unit shall not be subject to redemption by the Fund
until such time as there are not Exchangeable Shares outstanding which
are not owned by the Fund or its subsidiaries, and thereafter may be
redeemed at any time by the Fund upon giving 30 days' written notice to
the Special Voting Unitholder at the address of the holder set forth in
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the register of the Fund and payment of the redemption price in respect
of the Special Voting Unit of $1.00; and
d) upon the termination or other winding-up of the Fund, the holder of the
Special Voting Unit on the effective date of termination or other
winding-up of the Fund shall be entitled, in priority to any
distribution to the holders of the Units and the holders of any other
class or series of units of the Fund ranking junior to the Special
Voting Unit, and after the distribution to the holders of any class or
series of units of the Fund ranking senior to the Special Voting Unit,
to the amount of $1.00, and thereafter the holder of the Special Voting
Unit shall not be entitled to any further participation in the assets
of the Fund, and no distribution of any assets of the Fund or any
Distributable Cash shall be made to the holder of the Special Voting
Unit.
Notwithstanding anything contained in this Indenture, no amendment to
the foregoing rights, privileges, restrictions and conditions attaching to the
Special Voting Unit shall be effective unless such amendment is consented to by
the holder of the Special Voting Unit.
3.03 LIMIT OF ISSUE
The aggregate number of Units which may be authorized and issued
hereunder is limited to 500,000,000 Units.
3.04 FORM AND TERMS OF UNITS
a) Units are issuable only in fully registered form, evidencing Units
authorized pursuant to Section 3.03, shall forthwith be executed by the
Corporation and delivered to the Trustee and shall thereupon be
certified by and on behalf of the Trustee and shall be delivered by the
Trustee to or upon the written order of the Corporation.
b) Pursuant to the Agency Agreement, the Agents thereunder are to be
appointed as the exclusive agents for the Corporation to solicit
purchasers of the Units. The Units are to be offered for sale in those
jurisdictions in Canada, or elsewhere, in which all legal requirements
and requirements or restrictions hereunder for the distributions of
Units have been fulfilled.
c) The closing of the sale of Units shall take place at the Time of
Closing at the place or places stipulated in the Agency Agreement.
d) The definitive forms of the Unit Certificates and the certificate of
the Trustee endorsed thereon shall be in the English language only,
shall be in the forms set forth in the Schedules hereto, shall be dated
as of the Date of Closing (including all replacements issued in
accordance with this Indenture), shall include such distinguishing
letters and numbers as the Corporation, with the approval of the
Trustee, may prescribe, and shall be issuable in whole unit
denominations.
e) Notwithstanding the foregoing and notwithstanding Article XIII hereof,
Pengrowth may maintain a registry of security holders or may appoint
the Trustee to maintain a register of security holders and all Persons
named on such register shall be Unitholders for all of the purposes
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hereof, including, without limitation, the payment of distributions in
respect of the number of Trust Units specified in such register. The
inclusion of Trust Units from certificate form onto such register and
the transfer of Trust Units on such register shall be permissible in
accordance with the requirements established by the Administrator
and/or the Trustee from time to time.
3.05 RANKING OF UNITS
Each Unit represents an equal fractional undivided beneficial interest
in the Trust Fund provided however that the Directors of the Corporation may
cause the issuance of classes of Units in addition to the Class A Units and
Trust Units and set priorities in respect of capital and income for such
classes as among the Class A Units, the Trust Units and such additional class
or classes.
As regards the Class A Units and the Trust Units, the Directors of the
Corporation shall not authorize or permit to occur any i) Unit subdivision or
other change of one such class of Units into a greater number of Units, ii)
consolidation, reduction or combination of Units of one such class into a
lesser number of Units (other than in connection with a normal course issuer
bid applicable to only one such class of Units), iii) issuance of Units to all
or substantially all holders of outstanding Units of one such class as a
dividend or distribution, iv) issuance of rights, options or warrants to all or
substantially all of the holders of outstanding Units of one such class to
purchase Units of such class or other securities convertible into or
exchangeable for Units of such class, or v) otherwise effect any similar
transaction or change to the Units of one such class unless an equivalent
transaction or change is made to the Units of the other class so that, except
as specifically differentiated pursuant to Schedules A and B hereto, the equal
ranking of the Class A Units and Trust Units per this Section 3.05 is at all
times maintained.
3.06 UNITS NON-ASSESSABLE
No Units shall be issued other than as fully paid and non-assessable
provided, however, that Units may be issued and sold on an installment basis,
and in such case the Fund may take a security interest in any Units so issued
as security for unpaid installments. No Person shall be entitled, as a matter
of right, to subscribe for or purchase any Unit except in accordance with the
provisions hereof. There are no pre-emptive rights attaching to the Units.
3.07 FRACTIONAL UNITS
Fractional Units may be issued.
3.08 LEGAL OWNERSHIP OF ASSETS OF THE FUND
The legal ownership of the assets of the Fund and the right to manage
the investments of the Fund are vested exclusively in the Trustee, and the
Unitholders shall have no interest therein other than the beneficial interest
in the Trust Fund conferred by their Units issued hereunder and they shall have
no right to compel any partition, division, dividend or distribution of the
Trust Fund or any of the assets of the Fund. The Units shall be personal
property and shall confer upon the holders thereof only the interest and rights
specifically set forth in this Indenture. No Unitholder has or is deemed to
have any right of ownership in any of the assets of the Fund.
- 14 -
3.09 PURCHASE OF INITIAL UNIT BY FUND
On the Original Date of Closing, the Fund will purchase the Initial
Unit from the Corporation, and the Corporation shall sell the Initial Unit to
the Fund, for a purchase price of ten dollars in lawful money of Canada and,
upon the completion of such purchase and sale, the Initial Unit shall thereupon
be canceled and shall be no longer outstanding for any of the purposes of this
Indenture.
3.10 TRANSFERABILITY OF UNITS
The Units are transferable, subject to any restriction placed upon a
given class of Units in a Schedule to this Indenture.
3.11 RIGHTS, WARRANTS AND OPTIONS
The Trustee may create and issue rights, warrants or options to
subscribe for Units, which rights, warrants or options may be exercisable at
such subscription price or prices and at such time or times as the Trustee may
determine. Any rights, warrants or options so created may be issued for no
consideration or for such consideration as the Trustee may determine. A right,
warrant or option shall not be a Unit and a holder thereof shall not be a
Unitholder.
ARTICLE IV
INVESTMENTS OF TRUST FUND
4.01 INITIAL INVESTMENTS
The Trustee shall invest the net proceeds from the sale and issuance of
the Units in Permitted Investments.
4.02 OTHER INVESTMENTS
Any funds within the Trust Fund that are not required to be distributed
to Unitholders shall be used by the Trustee on behalf of the Unitholders only
to acquire Permitted Investments as directed by the Manager in writing from
time to time or, in the absence of such direction, shall be deposited by the
Trustee on behalf of the Unitholders and the Trustee is hereby authorized to
invest such monies in debt obligations of or guaranteed by the Government of
Canada or a province of Canada and in short term paper and certificates of
deposit issued or guaranteed by a Canadian chartered bank whose securities are
listed and posted for trading on The Toronto Stock Exchange or the Province of
Alberta Treasury Branches and in an interest-bearing account in a Canadian
chartered bank whose securities are listed and posted for trading on The
Toronto Stock Exchange or in an interest bearing account of the Trustee or the
Province of Alberta Treasury Branches provided that under no circumstances
shall the Trustee purchase any investment which is defined as "foreign
property" under any provision of the Act without obtaining from the Corporation
an appropriate tax opinion or other advice that such acquisition will not
adversely effect the Amended Tax Ruling and at no time will the cost amount to
the Fund of all foreign property held by it exceed the amount prescribed by
regulation 5000 to the regulations to the Act.
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ARTICLE V
DISTRIBUTIONS
5.01 DISTRIBUTIONS
Subject to Section 5.03, the Trustee shall distribute the Distributable
Cash on:
a) the 15th day of each February, May, August and November in each year;
or
b) if so directed by the Directors of the Corporation, on the 15th day of
each calendar month;
to Unitholders of record as of the close of business on the tenth Business Day
preceding the then current distribution date, or such other date as determined
by the Directors (each, a "Record Date") in accordance with the pro rata share
of each Unitholder (provided that the Trustee may deduct or withhold amounts
required by law from any Unitholders' distributions). A Unitholder shall have
the right to enforce the payment of its share of such distributions on any such
distribution date.
5.02 CROWN OBLIGATIONS
The Trustee shall be obligated to (i) apply for ARC, and (ii) reimburse
the Corporation for Reimbursed Crown Charges paid by the Corporation except to
the extent that the Corporation has elected to waive its right to
reimbursement, in accordance with the Royalty Indenture.
5.03 INCOME OF THE FUND
The net proceeds from any sale of the Royalty, if and when distributed
by the Corporation to, and received by, the Trustee pursuant to the Royalty
Indenture, shall be included in Distributable Cash.
5.04 METHOD OF PAYMENT OF DISTRIBUTIONS
All distributions shall be calculated in Canadian currency. A
distribution in respect of a Unit shall be paid by cheque to the order of the
Person in whose name the Unit is registered and mailed by ordinary mail,
postage prepaid to such Person at his last address appearing on the register of
Unitholders on the applicable Record Date. The forwarding of such cheque shall
satisfy and discharge the liability for a distribution to the extent of the
sums represented thereby (plus the amount of any tax deducted) unless such
cheque shall not be paid on presentation; provided that if such cheque is not
received by the registered Unitholder, or is lost or destroyed, the Trustee
(upon being furnished with reasonable evidence of such non-receipt, loss or
destruction and indemnity reasonably satisfactory to it) shall issue or cause
to be issued to such registered Unitholder a replacement cheque in the same
amount.
5.05 DISTRIBUTIONS DEEMED AS TO NET INCOME OR CAPITAL
All distributions made in respect to Units shall be deemed to be made
first from the net income of the Fund, if any, as of the Record Date to which
the distribution relates provided however that the directors of the Corporation
- 16 -
may cause the issuance of Units of different classes with different priorities
as to the receipt of net income or capital from the Fund, subject to subsection
104(7.1) of the Act. The net income of the Fund or the repayment of capital
from the Fund shall be allocated, as the case may be, for the purpose of the
Act, to the Unitholders of each class of Units in accordance with the PRO RATA
share of each Unitholder in the Trust in such class on the Record Date.
5.06 OBLIGATIONS OF CORPORATION
a) On the dates in each year in which the Directors of the Corporation
elect to make Cash Distributions in accordance with section 1.01(j) of
the Royalty Indenture, the Corporation will furnish or cause to be
furnished to the Trustee and to the Royalty Unitholders or Unitholders
of record on the tenth Business Day immediately preceding each of such
dates, on behalf of the Trustee, payment to each Unitholder of his
respective share of the Cash Distribution plus ARC, plus any interest
earned by the Fund.
b) Not later than 140 days after December 31, 2003 and not later that 90
days after December 31 in each calendar year thereafter, the
Corporation will forward to the Trustee and to the Unitholders of
record consolidated annual financial statements of the Fund. The
Corporation will also forward the interim consolidated unaudited
financial statements of the Fund to the Trustee and to the Unitholders
of record within the periods prescribed by applicable corporate and
securities legislation, if it is not exempted from such reporting
requirements.
ARTICLE VI
EXCHANGE OF ROYALTY UNITS
6.01 EXCHANGE RIGHT
A holder of Royalty Units (other than the Trustee) shall have the
right, at his option, to exchange any or all such Royalty Units for a number of
Trust Units having a value on the date of exchange equal to the value of such
Royalty Units as conclusively determined by the Corporation. Such exchange may
be made at any time so long as there are Trust Units outstanding, and subject
to the foregoing, such exchange shall occur on the terms and conditions set
forth below and in the Royalty Indenture.
6.02 EXERCISE OF EXCHANGE RIGHT
a) The Corporation, on behalf of the Fund, may establish a form of Royalty
Unit exchange form (a "ROYALTY UNIT EXCHANGE FORM") to be submitted to
the Fund and to the transfer agent of the Fund by any holder of Royalty
Units that wishes to exchange such Royalty Units for Trust Units which
Royalty Unit Exchange Form shall require the holder to elect and
indicate irrevocably:
i) the number of Royalty Units the holder wishes to exchange;
ii) the number of Trust Units the holder wishes to receive upon the
exchange;
- 17 -
b) The holder of Royalty Units desiring to exchange such Royalty Units in
whole or in part for Trust Units shall surrender his Royalty Unit
Certificate to the Trustee at its principal office in any of the cities
of Calgary, Vancouver or Toronto, together with a completed Royalty
Unit Exchange Form, or any other written notice or form satisfactory to
the Trustee, in either case duly executed by the holder or his
executors or administrators or other legal representatives or his or
their attorney duly appointed by an instrument in writing in form and
executed in a manner satisfactory to the Trustee, exercising his right
to exchange such Royalty Units in accordance with the provisions of
this Article and the Royalty Indenture. Thereupon such Royalty
Unitholder and/or, subject to payment of all applicable stamp or
security transfer taxes or other governmental charges and compliance
with all reasonable requirements of the Trustee, his nominee(s) or
assignee(s) shall be entitled:
i) to be entered in the books of the Fund as at the Date of
Exchange (or such later date as is specified in subsection
6.02(c)) as the holder of the number of Trust Units into which
such Royalty Units are exchangeable in accordance with the
provisions of this Article and, as soon as practicable
thereafter, the Trustee shall deliver to such Royalty
Unitholder and/or, subject as aforesaid, his nominee(s) or
assignee(s) a Unit Certificate or Certificates for such Units;
and
ii) to receive from the Trustee a Royalty Unit Certificate
representing those Royalty Units (if any) which were not
exchanged for Trust Units.
Thereupon, the Trustee shall be entitled to be entered into the books
of the Corporation as the holder of the number of Royalty Units which
are so exchanged.
c) For the purposes of this Article, Royalty Units shall be deemed to be
surrendered for exchange on the date (herein called the "DATE OF
EXCHANGE") on which they are so surrendered in accordance with the
provisions of this Article and, in the case of Royalty Units
surrendered by post or other means of transmission, on the date on
which they are received by the Trustee at one of its offices specified
in subsection 6.02(b); provided that if Royalty Units are surrendered
for exchange on a day which is not a Business Day, the Person entitled
to receive Trust Units shall become the holder of record of such Trust
Units as at the date on which such registers are next reopened.
6.03 ISSUE OF ROYALTY UNIT CERTIFICATES
All Royalty Unit Certificates representing Royalty Units exchanged
under the provisions of this Article shall be forthwith delivered to and, if
necessary, cancelled and destroyed by the Trustee and Royalty Unit Certificates
representing the Royalty Units exchanged for Trust Units shall be delivered to
or, if necessary, issued to the Trustee as trustee under the Trust Indenture.
Royalty Unit Certificates representing the Royalty Units not so exchanged shall
be issued to the Royalty Unitholder.
- 18 -
ARTICLE VII
REDEMPTION OF UNITS
7.01 REDEMPTION OF UNITS
Units are redeemable at any time on demand by the Unitholder upon
delivery to the Fund of the Unit Certificate or Certificates representing such
Units accompanied by a duly completed and properly executed notice requesting
redemption. Upon receipt of the redemption request by the Fund all rights to
and under the Units tendered for redemption shall be surrendered to the Fund
free and clear of all liens and encumbrances and the Unitholder shall be
entitled to receive the Redemption Price, subject to Sections 7.02 and 7.03.
7.02 PAYMENT OF REDEMPTION PRICE
The aggregate cash Redemption Price payable by the Fund in respect of
any Units surrendered for redemption during any calendar month shall be paid
from Available Redemption Funds and be satisfied by way of a cash payment on
the Redemption Payment Date; provided that the entitlement of Unitholders to
receive cash upon the redemption of their Units is subject to the limitations
and conditions that: (i) the total amount payable by the Fund in respect of
such Units and all other Units tendered for redemption in the same calendar
month shall not exceed $25,000, provided that such limitation may be waived at
the discretion of the Directors of the Corporation; (ii) at the time such Units
are tendered for redemption such Trust Units of the Fund shall be listed for
trading on a stock exchange or traded or quoted on any other market which the
Directors of the Corporation consider, in their sole discretion, provides
representative fair market value prices for the Units; and (iii) the normal
trading of Trust Units is not suspended or halted on any stock exchange on
which the Trust Units are listed (or, if not listed on a stock exchange, on any
market on which the Trust Units are quoted for trading) on the date that the
Units are surrendered for redemption or for more than five trading days during
the ten day trading period commencing immediately after the date on which the
Units are surrendered for redemption.
7.03 DISTRIBUTION IN SPECIE
If a Unitholder is not entitled to receive the cash Redemption Price as
a result of the limitation set out in section 7.02, then the Redemption Price
for such Units shall be the fair market value thereof as determined by the
Directors of the Corporation and shall, subject to any applicable regulatory
approvals, be paid and satisfied by way of a distribution IN SPECIE of a pro
rata share of Royalty Units and other assets (excluding facilities, pipelines
or other assets associated with oil and natural gas production) held by the
Fund at such time. No fractional securities will be distributed and where the
number of securities to be received by a Unitholder includes a fraction, such
number shall be rounded to the next lowest whole number. The Fund shall be
entitled to all redemption proceeds or distributions paid or declared payable
on the Units on or before the date of the distribution IN SPECIE. The holders
of securities will be subject to the provisions of all agreements that relate
to such securities.
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ARTICLE VIII
APPOINTMENT, RESIGNATION AND REMOVAL OF TRUSTEE
8.01 TRUSTEE'S TERM OF OFFICE
Subject to Sections 8.02 and 8.03, Computershare Trust Company of
Canada is hereby appointed for an initial term of office which shall expire
immediately upon the second annual meeting of Unitholders. Thereafter, a
decision to reappoint, or to appoint a successor to, a Trustee shall be made at
each second annual meeting of Unitholders following any reappointment or any
appointment is made. Any such reappointment or appointment shall be made either
by a resolution approved by a majority of the votes cast at such meeting of
Unitholders or shall be made in the manner set out in Section 8.04 and 8.05.
Notwithstanding the foregoing, if a Trustee is not reappointed at the meeting
of Unitholders held immediately before the term of office of such Trustee
expires and if no successor to such Trustee is appointed at that meeting, such
Trustee shall continue to hold the office of Trustee under this Indenture until
a successor has been appointed under Section 8.04 or 8.05.
8.02 RESIGNATION OF TRUSTEE
The Trustee may resign from the office of Trustee hereunder on giving
not less than 60 days' notice in writing delivered to the Corporation but no
such resignation shall be effective until the appointment of, and acceptance of
such appointment by, a new Trustee in the place of the resigning Trustee.
8.03 REMOVAL OF TRUSTEE
The Trustee shall be removed by notice in writing delivered by the
Corporation to the Trustee in the event that, at any time, the Trustee shall no
longer satisfy all of the requirements in Section 8.06 or shall be declared
bankrupt or insolvent or shall enter into liquidation, whether compulsory or
voluntary, and not being merely a voluntary liquidation for the purposes of
amalgamation or reconstruction, or if the assets of the Trustee shall otherwise
become liable to seizure or confiscation by any public or governmental
authority or if the Trustee shall otherwise become incapable of performing its
responsibilities under this Indenture. The Trustee may be removed at any time
for any other reason if such removal of the Trustee is approved by an
Extraordinary Resolution of Unitholders at a meeting duly called for that
purpose. No decision to remove a Trustee under this Section 8.03 shall become
effective until the appointment of, and acceptance of such appointment by, a
new Trustee under Section 8.04 or Section 8.05 in the place of the Trustee to
be removed.
8.04 APPOINTMENT OF SUCCESSOR TO TRUSTEE
a) The Corporation may appoint a successor to any Trustee who has been
removed by the Corporation under Section 8.03. In the event of any
removal or resignation of a Trustee, the Corporation shall promptly
appoint a successor or promptly recommend a successor for appointment
by Unitholders.
b) A successor to a Trustee whose term of office has expired and who has
not been reappointed under Section 8.01, who has resigned under Section
8.02 or who has been removed at a meeting of Unitholders under Section
- 20 -
8.03 may be appointed by a resolution passed by a majority of the votes
cast at a meeting of Unitholders duly called for that purpose.
c) When a successor to a Trustee has been appointed under subsection
8.04(a) or under subsection 8.04(b) in consequence of the resignation
or the removal of the Trustee, the successor to such Trustee shall hold
office only for the balance of the term of office of such Trustee.
8.05 FAILURE TO APPOINT SUCCESSOR
In the event that no successor to a Trustee whose term of office has
expired, who has delivered a notice of resignation in accordance with Section
8.02, or who has received notice of removal in accordance with Section 8.03,
has accepted an appointment under Section 8.01 or 8.04 within 60 days after the
expiration of such term or the delivery of such notice, the Trustee or the
Corporation may apply to a court of competent jurisdiction for the appointment
of a successor to the Trustee to hold office for the term referred to in
Section 8.01 or 8.04, as the case may be. The appointment of such successor by
such court shall not require the approval of Unitholders.
8.06 QUALIFICATIONS OF TRUSTEE
The Trustee and any successor to the Trustee appointed under this
Article VIII shall be a corporation incorporated under the laws of Canada or
of a province thereof and shall be resident in Canada for the purpose of the
Act. Such corporation must at all times when it is the Trustee be registered
under the laws of the Province of Alberta to carry on the business of a trust
company, must not be an Affiliate of the Corporation and must have undertaken
in writing to discharge all of the obligations and responsibilities of the
Trustee under this Indenture.
ARTICLE IX
CONCERNING THE TRUSTEE
9.01 POWERS OF THE TRUSTEE
Subject to the terms and conditions of this Indenture, the Trustee may
exercise from time to time in respect of the assets of the Fund, any and all
rights, powers and privileges that could be exercised by a beneficial owner
thereof.
9.02 SPECIFIC POWERS AND AUTHORITIES
Subject only to the express limitations contained in this Indenture and
in addition to any powers and authorities conferred by this Indenture or which
the Trustee may have by virtue of any present or future statute or rule of law,
the Trustee without any action or consent by the Unitholders shall have and may
exercise at any time and from time to time the following powers and authorities
which may or may not be exercised by it in its sole judgment and discretion and
in such manner and upon such terms and conditions as it may from time to time
deem proper:
- 21 -
a) to review and accept subscriptions for Units received by the Fund and
to issue Units pursuant thereto;
b) to issue the Special Voting Unit;
c) to subscribe for Royalty Units of the Corporation;
d) to issue Units in exchange for Royalty Units tendered to the Trustee in
accordance with Article VI;
e) to maintain records and provide timely reports to Unitholders;
f) to effect payment of the cash distributions, special distributions,
interest income and to file for and collect ARC, on behalf of the Fund
and the Unitholders;
g) to deposit funds of the Fund in interest-bearing accounts in banks,
trust companies, the Province of Alberta Treasury Branches and other
depositories, including the Trustee, the same to be subject to
withdrawal on such terms and in such manner and by such person or
persons (including any one or more officers, agents or representatives)
as the Trustee may determine;
h) to possess and exercise all the rights, powers and privileges
appertaining to the ownership of all or any mortgages, or securities,
issued or created by, or interest in, any Person, forming part of the
assets of the Fund, to the same extent that an individual might, unless
otherwise limited herein, and, without limiting the generality of the
foregoing, to vote or give any consent, request or notice, or waive any
notice, either in person or by proxy or power of attorney, with or
without power of substitution, to one or more Persons, which proxies
and powers of attorney may be for meetings or action generally or for
any particular meeting or action and may include the exercise of
discretionary power;
i) where reasonably required, to engage or employ any Persons as agents,
representatives, employees or independent contractors (including,
without limitation, investment advisers, registrars, underwriters,
accountants, lawyers, appraisers, brokers or otherwise) in one or more
capacities;
j) except as prohibited by law, to delegate any of the powers and duties
of the Trustee to any one or more agents, representatives, officers,
employees, independent contractors or other Persons without liability
to the Trustee except as provided in this Indenture;
k) to collect, ▇▇▇ for and receive all sums of money coming due to the
Fund, and to engage in, intervene in, prosecute, join, defend,
compromise, abandon or adjust, by arbitration or otherwise, any
actions, suits, proceedings, disputes, claims, demands or other
litigation relating to the Fund, the assets of the Fund or the Fund's
affairs, to enter into agreements therefor, whether or not any suit is
commenced or claim accrued or asserted and, in advance of any
controversy, to enter into agreements regarding the arbitration,
adjudication or settlement thereof;
- 22 -
l) to arrange for insurance contracts and policies insuring the assets of
the Fund against any and all risks and insuring the Fund and/or any or
all of the Trustee or the Unitholders against any and all claims and
liabilities of any nature asserted by any Person arising by reason of
any action alleged to have been taken or omitted by the Fund or by the
Trustee or Unitholders;
m) to cause legal title to any of the assets of the Fund to be held by
and/or in the name of the Trustee, or except as prohibited by law, by
and/or in the name of the Fund or any other Person, on such terms, in
such manner, with such powers in such Person as the Trustee may
determine and with or without disclosure that the Fund or Trustee is
interested therein, provided however that should legal title to any of
the assets of the Fund be held by and/or in the name of any Person or
Persons other than the Trustee, the Trustee shall require such Person
or Persons to execute a trust agreement acknowledging that legal title
to such assets is held in trust for the benefit of the Fund;
n) to do all such other acts and things as are incidental to the
foregoing, and to exercise all powers which are necessary or useful to
carry on the business of the Fund, to promote any of the purposes for
which the Fund is formed and to carry out the provisions of this
Indenture;
o) to use its best efforts to ensure that the Fund complies at all times
with the requirements of subsections 108(2) and 132(6) of the Act;
p) to acquire facilities, pipelines or other assets associated with oil
and natural gas production, provided they are permitted investments of
a "mutual fund trust" under the provisions of subsection 132(6) of the
Act;
q) to purchase, otherwise acquire, hold, sell, dispose of, or otherwise
deal with any and all Permitted Investments;
r) to borrow, incur indebtedness or give a guarantee on behalf of the Fund
or any other Person;
s) to cause the Fund, to the extent of the Trust Fund, to indemnify those
directors of the Corporation which the Unitholders cause to be elected
to the board of directors of the Corporation in accordance with the
terms of the Unanimous Shareholder Agreement;
t) to possess and exercise all the rights, powers and privileges
pertaining to the ownership of all or any part of the assets of the
Fund, to the same extent that an individual might, unless otherwise
limited herein, and, without limiting the generality of the foregoing,
to vote or give any consent, request or notice, or waive any notice,
either in person or by proxy or power of attorney, with or without
power of substitution, to one or more Persons, which proxies and powers
of attorney may be for meetings or actions generally or for any
particular meeting or action and may include the exercise of
discretionary power and the Trustee shall ensure that the directors of
the Corporation be elected or appointed (or re-elected or re-appointed,
as the case may be) at intervals not exceeding eighteen months;
- 23 -
u) when reasonably required, to engage or employ any Persons as agents,
representatives, employees or independent contractors (including,
without limitation, investment advisers, registrars, underwriters,
accountants, lawyers, appraisers, brokers or otherwise) in one or more
capacities;
v) to accept, hold, renew or extend or participate in the acceptance,
holding, renewal or extension of any security upon such terms as may be
deemed advisable, and to agree to a reduction in the rate of interest
on any security or to any other modification or change in the terms of
any security or of any guarantee pertaining thereto, in any manner and
to any extent that it may deem advisable; to waive any default in the
performance of any covenant or condition of any security or in the
performance of any guarantee, or to enforce the rights in respect of
any such default in such manner and to such extent as it may deem
advisable; to exercise and enforce any and all rights of foreclosure,
to bid on property on sale or foreclosure, to take a conveyance in lieu
of foreclosure with or without paying any consideration therefor and in
connection therewith to relieve the obligation on the covenants secured
by such security and to exercise and enforce in any action, suit or
proceeding at law or in equity any rights or remedies with respect to
any such security or guarantee;
w) to make, execute, acknowledge and deliver any and all deeds, contracts,
waivers, releases or other documents of transfer and any and all other
instruments in writing necessary or proper for the accomplishment of
any of the powers herein granted;
x) except as prohibited by law, to delegate any or all of the management
and administrative powers and duties of the Trustee to the Corporation,
the Manager or any one or more agents, representatives, officers,
employees, independent contractors or other Persons without liability
to the Trustee except as provided in this Trust Indenture;
y) to charge, pledge, mortgage, hypothecate or grant any security interest
over or with respect to all or any assets of the Fund as may be
requested from time to time by lenders in respect of borrowings
required by the Fund or the Corporation;
z) to accept subscriptions for Units received by the Fund and to issue
additional Units and the Special Voting Unit from time to time in
accordance with offering documents and/or as provided in this Trust
Indenture, as directed by the Directors of the Corporation and, on the
request of the Manager therefor, in satisfaction of the obligation to
issue Units to the Manager as compensation as provided for in the
Management Agreement; and
aa) to enter into a subordination agreement with any lender or lenders to
the Corporation pursuant to which the Fund agrees to subordinate its
right to be paid the Royalty by the Corporation to the right of any
such lender or lenders to be paid obligations owing to it by the
Corporation, and which agreement may further provide, without
limitation, that in the event of a default by the Corporation to any of
its lenders, including any such default in connection with credit
facilities, swap or hedging agreements or otherwise, the Corporation
will not make any further payments in respect of the Royalty to the
Fund, or that the Fund will not make any further distributions to
Unitholders, or that in the event any such lenders realize against the
assets of the Corporation (including, without limitation, Properties)
- 24 -
in connection with collecting upon any of the obligations owing by the
Corporation to any of such lenders, whether pursuant to any security
granted by the Corporation or otherwise, the Trustee shall release the
Royalty on the assets realized upon and the lenders shall be entitled
to realize on the assets of the Corporation free and clear of the
Royalty.
9.03 RESTRICTION ON POWERS
a) Notwithstanding the foregoing, the Trustee may not under any
circumstances whatsoever sell, assign or otherwise dispose of any
Royalty Units without the approval of the Unitholders by Extraordinary
Resolution at a meeting of Unitholders called for that purpose.
b) In respect of any obligations that the Fund is required to assume, the
Trustee will use its best efforts to ensure that these are in writing
and contain provisions to exempt the Unitholders from any liability
thereunder and to limit any such liability in respect of Fund assets.
9.04 VOTING OF ROYALTY UNITS AND COMMON SHARES HELD BY THE FUND
All Royalty Units and Shares held from time to time by the Trustee as
part of the property of the Fund shall be voted by the Trustee at any and all
meetings of the Royalty Unitholders or any and all meetings of the
Shareholders. The Trustee shall be required to seek the direction of the
Unitholders prior to voting such Royalty Units or Shares at any and all
meetings of the Royalty Unitholders or Shareholders.
9.05 BANKING
The banking business of the Fund, or any part thereof, shall be
transacted with such bank, trust company (including the Trustee), Province of
Alberta Treasury Branches or other firm or corporation carrying on a banking
business as the Trustee may designate, appoint or authorize from time to time
and all such banking business, or any part thereof, shall be transacted on the
Fund's behalf by such one or more officers of the Trustee and/or other Persons
as the Trustee may designate, appoint or authorize from time to time including,
but without restricting the generality of the foregoing, the operation of the
Fund's accounts; the making, signing, drawing, accepting, endorsing,
negotiation, lodging, depositing or transferring of any cheques, promissory
notes, drafts, acceptances, bills of exchange and orders for the payment of
money; the giving of receipts for and orders relating to any property of the
Fund; the execution of any agreement relating to any property of the Fund; the
execution of any agreement relating to any property of the Fund; the execution
of any agreement relating to any such banking business and defining the rights
and powers of the parties hereto; and the authorizing of any officer of such
banker to do any act or thing on the Fund's behalf to facilitate such banking
business.
9.06 STANDARD OF CARE
Subject to Article X hereof, the Trustee shall exercise its powers and
carry out its functions hereunder as Trustee honestly, in good faith and in the
best interests of the Fund and the Unitholders and, in connection therewith,
shall exercise that degree of care, diligence and skill that a reasonably
- 25 -
prudent person would exercise in comparable circumstances. Unless otherwise
required by law, the Trustee shall not be required to give bond, surety or
security in any jurisdiction for the performance of any duties or obligations
hereunder. The Trustee, in its capacity as trustee, shall not be required to
devote its entire time to the business and affairs of the Fund.
9.07 FEES AND EXPENSES
The Trustee shall be entitled to receive from the Corporation such fees
as may be agreed upon from time to time by the Manager and the Trustee. If the
Trustee is affiliated with the Manager, the Trustee shall not be entitled to
receive any fees for its services as Trustee and shall not be entitled to
reimbursement from the Corporation of any of its expenses incurred in acting as
Trustee. As part of general and administrative costs, the Corporation on behalf
of the Trustee may pay or cause to be paid reasonable expenses incurred in
connection with the administration and management of the Fund, including
without limitation fees of auditors, lawyers, appraisers and other agents,
consultants and professional advisers employed by or on behalf of the Fund and
the cost of reporting or giving notices to Unitholders. The Corporation on
behalf of the Trustee may pay or cause to be paid brokerage commissions at
prevailing rates in receipt of the acquisition and disposition of any
securities acquired or disposed of by the Fund to brokers.
9.08 LIMITATIONS ON LIABILITY OF TRUSTEE
The Trustee, its officers and agents shall not be liable to any
Unitholder for any action taken in good faith in reliance on any documents that
are, PRIMA FACIE, properly executed, for any depreciation of, or loss to, the
Trust Fund incurred by reason of the sale of any security, for the disposition
of monies or securities, or for any other action or failure to act (including,
without limitation, the failure to compel in any way any former trustee to
redress any breach of trust or any failure by the Corporation to perform its
duties under this Indenture, the Royalty Indenture, the Unanimous Shareholder
Agreement, the Management Agreement and the Agency Agreement) except in cases
of willful misfeasance, bad faith, negligence or disregard of its obligations
and duties or for a breach of its duties and responsibilities and its standard
of care, diligence and skill as set out in Section 9.06. If the Trustee has
retained an appropriate expert or advisor with respect to any matter connected
with its duties under this Indenture or under the Royalty Indenture, the
Trustee may act or refuse to act based on the advice of such expert or advisor
and, notwithstanding any provision of this Indenture and the Royalty Indenture,
including, without limitation, the standard of care, diligence and skill set
out in Section 9.06 hereof, the Trustee shall not be liable for any action or
refusal to act based on the advice of any such expert or advisor.
9.09 INDEMNIFICATION OF TRUSTEE
The Trustee and each of its officers and agents shall be entitled to be
indemnified and reimbursed out of the Trust Fund in respect of any taxes,
penalties or interest in respect of unpaid taxes or other governmental charges
imposed upon the Trustee in consequence of its performance of its duties
hereunder; provided that the Trustee, its officers, employees or agents shall
not be indemnified out of the Trust Fund in respect of unpaid taxes or other
governmental charges that arise out of or as a result or in the course of a
breach of the standard of care, diligence and skill of the Trustee under
- 26 -
Section 9.06. The Trustee or such officer or agent shall not be entitled to
satisfy any right of indemnity or reimbursement granted herein, or otherwise
existing under law, except out of the Trust Fund, and no Unitholder shall be
personally liable to any Person with respect to any claim for such indemnity or
reimbursement as aforesaid.
9.10 ENVIRONMENTAL INDEMNITY
The Fund (to the extent of the Trust Fund) is liable to, and shall
indemnify and save harmless, the Trustee, its directors, officers, employees,
shareholders and agents, and all of their successors and assigns (collectively,
the "Indemnified Parties") against any loss, expense, claim, liability or
asserted liability (including strict liability and costs and expenses of
abatement and remediation of spills or releases of contaminants and liabilities
of the Indemnified Parties to third parties (including governmental agencies)
in respect of bodily injuries, property damage, damage to or impairment of the
environment or any other injury or damage and including liabilities of the
Indemnified Parties to third parties for the third parties' foreseeable and
unforeseeable consequential damages) incurred as a result of:
a) the administration of the Fund created hereby, or
b) the exercise by the Trustee of any rights or obligations hereunder,
and which result from or relate, directly or indirectly, to,
c) the presence or release or threatened presence or release of any
contaminants, by any means or for any reason, on or in respect of any
assets of the Corporation, whether or not such presence or release or
threatened presence or release of the contaminants was under the
control, care or management of the Fund or the Manager, or of a
previous owner or operator of an asset,
d) any contaminant present on or released from any property adjacent to or
in the proximate area of an asset,
e) the breach or alleged breach of any federal, provincial or municipal
environmental law, regulation, by-law, order rule or permit by the Fund
or the Manager or an owner or operator of an asset, or
f) any misrepresentation or omission of a known fact or condition made by
the Manager or the Corporation relating to an asset.
For purposes of this Section 9.10, "liability" shall include (i)
liability of an Indemnified Party for costs and expenses of abatement and
remediation of spills and releases of contaminants, (ii) liability of an
Indemnified Party to a third party to reimburse the third party for bodily
injuries, property damage and other injuries or damages which the third party
suffers, including (to the extent, if any, that the Indemnified Party is liable
therefor) foreseeable and unforeseeable consequential damages suffered by the
third party, and (iii) liability of the Indemnified Party for damage to or
impairment of the environment.
- 27 -
Notwithstanding the foregoing, the Fund shall not be liable to
indemnify an Indemnified Party against any loss, expense, claim, liability or
asserted liability to the extent resulting from the gross negligence, willful
default or fraud of the Indemnified Party.
ARTICLE X
DELEGATION OF POWERS
10.01 THE MANAGER
Except as prohibited by law, the Trustee may grant or delegate to a
Person or Persons (the "Manager" or "Administrator" as the case may be) such
authority as the Trustee may in its sole discretion deem necessary or desirable
to effect the actual administration of the duties of the Trustee under this
Indenture, without regard to whether such authority is normally granted or
delegated by trustees. The Trustee may grant to the Manager or Administrator
the broad discretion and authority to administer and regulate the day-to-day
operations of the Fund, to act as agent for the Fund, to execute documents on
behalf of the Trustee and to make decisions which conform to general policies
and general principles established hereunder or previously established by the
Trustee. The Trustee may enter into a contract or contracts with the Manager or
Administrator relating to the Manager or Administrator's authority, term of
appointment, compensation and any other matters deemed desirable by the Trustee
and the Corporation. The Corporation, the Trustee, Pengrowth Management Limited
and the Fund shall enter into the Management Agreement pursuant to which
Pengrowth Management Limited shall be appointed "Advisor" and assigned certain
duties of the Manager.
10.02 THE CORPORATION
Pursuant to its ability to delegate in accordance with Section 10.01,
the Trustee hereby delegates to the Corporation as administrator (the
"Administrator") responsibility for:
a) any and all matters relating to an offering of Units to prospective
Unitholders including:
i) ensuring compliance with all applicable laws;
ii) all matters relating to the content of any documents prepared
and issued in respect of such offering, the accuracy of the
disclosure contained therein, and the certification thereof;
iii) all matters concerning the terms of and amendment from time to
time of the Material Contracts and all other instruments,
documents and agreements to be executed by the Fund pursuant to
or in furtherance of transactions; and
iv) all matters concerning any Agency Agreement providing for the
sale of Units or rights to acquire Units;
b) any and all matters and decisions relating to ensuring that the Fund
complies at all times with the requirements of subsections 108(2) and
132(6) of the Act or similar or successor provisions thereto;
- 28 -
c) any and all matters and decisions relating to the acquisition of
facilities, interests or royalty interests or other assets by the Fund;
and
d) the determination of Distributable Cash.
The Corporation as Administrator accepts such delegation and agrees
that, in respect of such matters, it shall carry out its functions honestly, in
good faith and in the best interests of the Fund and the Unitholders and, in
connection therewith, shall exercise that degree of care, diligence and skill
that a reasonably prudent person would exercise in comparable circumstances.
The Corporation may execute any agreements on behalf of the Fund as the
Corporation shall have authorized within the scope of any authority delegated
to it hereunder.
10.03 POWER OF ATTORNEY
Without limiting any of the other provisions of this Article X, the
Trustee hereby delegates to the Corporation from time to time the full power
and authority, and constitutes the Corporation its true and lawful attorney in
fact, to sign on behalf of the Fund all prospectuses, annual information forms,
management proxy circulars, other offering documents and any other documents
ancillary or similar thereto required to be signed by the Fund from time to
time.
10.04 LIABILITY OF TRUSTEE
The Trustee shall have no liability or responsibility for any matters
delegated to the Corporation or the Manager hereunder or under any of the
Material Contracts, and the Trustee, in relying upon the Corporation or the
Manager and in entering into Material Contracts, shall be deemed to have
complied with its obligations under Article IX and shall be entitled to the
benefit of the indemnity provided in Article IX.
10.05 PERFORMANCE OF OBLIGATIONS
In the event that the Manager is unable or unwilling to perform its
obligations under the Management Agreement, or there is no Manager, the Trustee
shall either perform all obligations of the Manager thereunder or shall be
entitled to engage another Person that is duly qualified to perform such
obligations.
10.06 CERTIFICATE OF COMPLIANCE
The Corporation as Administrator shall, and shall cause the Manager to,
furnish to the Trustee annually, within 120 days of the fiscal year end of the
Fund, a certificate signed by the Chief Executive Officer and the Chief
Financial Officer of the Administrator and Manager, or such other officers of
the Administrator and the Manager as may be acceptable to the Trustee
certifying that the Administrator and the Manager are in compliance in all
material respects of its covenants, duties or obligations under the Trust
Indenture and Royalty Agreements relating to the business and affairs of the
Fund, or if such is not the case, specifying the covenants, duties or
obligations which have not been complied with and giving particulars of such
non compliance.
- 29 -
ARTICLE XI
AMENDMENT
11.01 AMENDMENT
The provisions of this Indenture except where specifically provided
otherwise may only be amended by Extraordinary Resolution. Any of the
provisions of this Indenture except where specifically provided otherwise may
only be amended by the Trustee at any time or times, without the consent,
approval or ratification of any of the Unitholders or any other Person, for the
purpose of:
a) ensuring that the Fund will comply with any applicable laws or
requirements of any governmental agency or authority of Canada or of
any province;
b) ensuring that the Fund will satisfy the provisions of each of
subsections 108(2) and 132(6) of the Act;
c) ensuring that such additional protection is provided for the interests
of Unitholders as the Trustee may consider expedient;
d) removing any conflicts or inconsistencies between the provisions of
this Indenture or any supplemental indenture and any prospectus filed
with any regulatory or governmental body with respect to the Fund, or
any applicable law or regulation of any jurisdiction, if, in the
opinion of the Trustee, such an amendment will not be detrimental to
the interests of the Unitholders; or
e) making any typographical or other non-substantive changes that Counsel
may advise are necessary or desirable and which are not adverse to the
interests of the Trustee or the Unitholders for the purpose of curing
or correcting any ambiguity or defective or inconsistent provisions or
clerical omission, mistake or manifest error herein or in any
supplemental indenture,
but notwithstanding the foregoing, no such amendment shall reduce the
fractional undivided interest in the Trust Fund represented by any Unit without
the consent of the holder of such Unit, and no amendment shall reduce the
percentage of votes required to be cast at a meeting of the Unitholders for the
purpose of this Section 11.01 without the consent of the holders of all of the
Units then outstanding.
11.02 NOTIFICATION OF AMENDMENT
As soon as shall be practicable after the making of any amendment
pursuant to this Article XI, the Trustee shall furnish written notification of
the substance of such amendment to each Unitholder.
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ARTICLE XII
MEETINGS OF UNITHOLDERS
12.01 ANNUAL AND SPECIAL MEETINGS OF UNITHOLDERS
Annual meetings of the Unitholders shall be held, commencing in 1990,
on a day, at a time and at a place to be set by the Trustee. The business
transacted at such meetings shall include the transaction of such business as
Unitholders may be entitled to vote upon as hereinafter provided in this
Article XII, or as the Trustee may determine. Special meetings of the
Unitholders may be called at any time by the Trust and shall be called by the
Trustee upon a written request of Unitholders holding in the aggregate not less
than 5% of the votes attaching to all Units then outstanding, such request
specifying the purpose or purposes for which such meeting is to be called.
Meetings of Unitholders shall be held in the City of Calgary, or at such other
place within Alberta as the Trustee shall designate. To the extent permitted by
applicable law, meetings of Unitholders may be held partially or entirely by
means of a telephonic, electronic or other communication facility, including
teleconferencing, video conferencing, computer link, webcasting and other
similar means. The Chairman of any annual or special meeting shall be a person
designated by the Trustee for the purpose of such meeting except that, on the
motion of any Unitholder, any person may be elected as Chairman by a majority
of the votes cast at the meeting instead of such designated person or in the
event that no person shall be designated by the Trustee.
12.02 NOTICE OF MEETINGS
Notice of all meetings of Unitholders shall be given by unregistered
mail postage prepaid addressed to each Unitholder at his registered address,
mailed at least twenty one (21) days and not more than fifty (50) days before
the meeting. Such notice shall set the time when, and the place where, such
meeting is to be held and shall specify the nature of the business to be
transacted at such meeting in sufficient detail to permit a Unitholder to form
a reasonable judgment thereon, together with the text of any resolution, at the
time of mailing of the notice, proposed to be passed. Any adjourned meeting may
be held as adjourned without further notice. The accidental omission to give
notice or the non-receipt of such notice by a Unitholder shall not invalidate
any resolution passed at any such meeting. Notwithstanding the foregoing, a
meeting of Unitholders may be held at any time without notice if all the
Unitholders are present or represented thereat or those not so present or
represented have waived notice. Any Unitholders (or a duly appointed proxy of a
Unitholder) may waive any notice required to be given under the provisions of
this paragraph, and such waiver, whether given before or after the meeting,
shall cure any default in the giving of such notice.
12.03 QUORUM
At any meeting of the Unitholders, subject as hereinafter provided, a
quorum shall consist of two or more individuals present in person either
holding personally or representing as proxies not less than 5% of the votes
attaching to all outstanding Units. In the event of such quorum not being
present at the appointed place on the date for which the meeting is called
- 31 -
within one half (1/2) hour after the time fixed for the holding of such
meeting, the meeting shall stand adjourned to such day being not less fourteen
(14) days later and to such place and time as may be appointed by the Chairman
of the meeting. If at such adjourned meeting a quorum as above defined is not
present, the Unitholders present either personally or by proxy shall form a
quorum, and any business may be brought before or dealt with at such an
adjourned meeting which might have been brought before or dealt with at the
original meeting in accordance with the notice calling the same.
12.04 VOTING RIGHTS OF UNITHOLDERS
Only Unitholders of record shall be entitled to vote and each Unit
shall entitle the holder or holders of that Unit to the number of votes
attaching to that class of Unit at any meeting of Unitholders, provided that
each Unit shall entitle the holder or holders of that Unit to one vote at any
meeting of Unitholders. At any meeting of Unitholders, any holder of Units
entitled to vote thereat may vote by proxy and a proxy need not be a
Unitholder, provided that no proxy shall be voted at any meeting unless it
shall have been placed on file with the Trustee, or with such agent of the
Trustee as the Trustee may direct, for verification twenty-four hours prior to
the commencement of such meeting. If approved by the Trustee, proxies may be
solicited in the name of the Trustee. When any Unit is held jointly by several
Persons, any one of them may vote at any meeting in person or by proxy in
respect of such Unit, but if more than one of them shall be present at such
meeting in person or by proxy, and such joint owners of their proxies so
present disagree as to any vote to be cast, such vote purporting to be executed
by or on behalf of a Unitholder shall be deemed valid unless challenged at or
prior to its exercise, and the burden of proving invalidity shall rest on the
challenger. To the extent permitted by applicable law, the Trustee may from
time to time make, vary or revoke such regulations as it shall think fit
providing for and governing the depositing and tabulation of proxies by
telephonic, electronic or other communication means. To the extent permitted by
applicable law, a person entitled to vote at a meeting of Unitholders may vote
by means of a telephonic, electronic or other communication facility that the
Trustee has made available for that purpose.
12.05 RESOLUTIONS BINDING THE TRUSTEE
Unitholders shall be entitled to pass resolutions that will bind the
Trustee only with respect to the following matters:
a) the removal or appointment of the Trustee as provided in Section 8.03
or 8.04;
b) approval of a change of auditors as provided in Section 17.03;
c) the appointment of an Inspector as provided in Section 12.08;
d) consenting to any amendments of this Indenture as provided in Section
11.01;
e) approval of subdivisions or consolidations of Units;
f) approval of any resolution of the Trustee to terminate the Fund as
provided in Section 14.02;
- 32 -
g) the sale of the property of the Trust Fund as an entirety or
substantially as an entirety;
h) authorizing and directing the Trustee to commence, defend, adjust or
settle suits or legal proceedings in connection with the Fund and to
represent the Fund in any such suits or legal proceedings (provided
that the Trustee shall be obliged to comply with such authority and
requirements only in the event that the Trustee has been provided with
reasonable security for the payment of all costs which may be incurred
in connection therewith); and
i) authorizing and directing the Trustee to subordinate its rights to
receive Royalty Income and all other sums and to distribute
Distributable Cash in circumstances where a default by the Corporation
has occurred in respect of any of its obligations to pay any of the
Corporation's lenders, including a default in connection with any
credit facility or in connection with any swap or hedging agreement, or
to guarantee all or any of the obligations, liabilities or indebtedness
of the Corporation to all or any of the Corporation's lenders,
including without limitation in respect of all or any of the
obligations, liabilities and indebtedness of the Corporation to any or
all of such lenders under, pursuant or relating to any credit facility,
swap or hedging agreement or otherwise, or to any other Person or
Persons.
Except with respect to the above matters set out in this Section 12.05 no
action taken by the Unitholders or resolution of the Unitholders at any meeting
shall in any way bind the Trustee. Actions taken or resolutions passed in
respect of matters described in subsection (a), (d), (e), (f), (g), (h) and (i)
shall be by Extraordinary Resolution. Any other action taken or resolution
passed in respect of any matter at a meeting of Unitholders shall be by
Ordinary Resolution unless the contrary is otherwise expressly provided under
any specific provision of this Indenture.
12.06 MEANING OF "EXTRAORDINARY RESOLUTION" AND "ORDINARY RESOLUTION"
a) The expression "Extraordinary Resolution" when used in this Indenture
means, subject as hereinafter in this Article provided, a resolution
proposed to be passed as an extraordinary resolution at a meeting of
Unitholders (including an adjourned meeting) duly convened for the
purpose and held in accordance with the provisions of this Article at
which two or more holders of at least 5% of the aggregate number of
votes attaching to the Units then outstanding are present in person or
by proxy and passed by the affirmative votes of the holders of not less
than 66-2/3% of the votes attaching to the Units represented at the
meeting and voted on a poll upon such resolution.
b) The expression "Ordinary Resolution" when used in this Indenture means,
subject as hereinafter in this Article provided, a resolution proposed
to be passed as an ordinary resolution at a meeting of Unitholders
(including an adjourned meeting) duly convened for the purpose and held
in accordance with the provisions of this Article at which two or more
holders of at least 5% of the aggregate number of votes attaching to
the Units then outstanding are present in person or by proxy and passed
by the affirmative votes of the holders of more than 50% of the votes
attaching to the Units represented at the meeting and voted on a poll
upon such resolution.
- 33 -
c) If, at any such meeting, the holders of 5% of the aggregate number
votes attaching to the Units are not present in person or by proxy
within 30 minutes after the time appointed for the meeting, then the
meeting, if convened by or on the requisition of Unitholders, shall be
dissolved; but in any other case it shall stand adjourned to such date,
being not less than 21 nor more than 60 days later, and to such place
and time as may be appointed by the chairman. Not less than ten days'
prior notice shall be given of the time and place of such adjourned
meeting in the manner provided in Section 12.02. Such notice shall
state that at the adjourned meeting the Unitholders present in person
or by proxy shall form a quorum but it shall not be necessary to set
forth the purposes for which the meeting was originally called or any
other particulars. At the adjourned meeting the Unitholders present in
person or by proxy shall form a quorum and may transact the business
for which the meeting was originally convened and a resolution proposed
at such adjourned meeting and passed by the requisite vote as provided
in subsection (a) of this Section shall be an Extraordinary Resolution
or an Ordinary Resolution within the meaning of this Indenture, as the
case may be, notwithstanding that the holders of less than 5% of the
aggregate number of votes attaching to the Units then outstanding are
present in person or by proxy at such adjourned meeting.
d) Votes on an Extraordinary Resolution or an Ordinary Resolution shall
always be given on a poll and no demand for a poll on an Extraordinary
Resolution or an Ordinary Resolution shall be necessary.
12.07 RECORD DATE FOR VOTING
For the purpose of determining the Unitholders who are entitled to vote
or act at any meeting or any adjournment thereof, the Trustee may fix a date
not more than fifty (50) days and not less than twenty one (21) days prior to
the date of any meeting of Unitholders as a record date for the determination
of Unitholders entitled to vote at such meeting or any adjournment thereof, and
any Unitholder who was a Unitholder at the time so fixed shall be entitled to
vote at such meeting or any adjournment thereof even though he has since that
time disposed of his Units, and no Unitholder becoming such after that time
shall be so entitled to vote at such meeting or any adjournment thereof. In the
event that the Trustee does not fix a record date for any meeting of
Unitholders, the record date for such meeting shall be the date upon which
notice of the meeting is given as provided under Section 12.02.
12.08 APPOINTMENT OF INSPECTOR
The Trustee shall call a meeting of Unitholders upon the written
request of Unitholders holding in the aggregate not less than 5% of the number
of votes attaching to the Units then outstanding for the purpose of considering
the appointment of an Inspector to investigate the performance by the Trustee
of the responsibilities appointed at such meeting by a resolution approved by a
majority of the votes cast at the meeting.
12.09 RESOLUTIONS IN WRITING
Notwithstanding any other provision of this Indenture, after due and
proper prior notice to all Unitholders, a resolution in writing executed by any
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number of Unitholders at any time shall be as valid and binding for all
purposes of this Indenture as if such Unitholders had exercised at that time
all of the voting rights to which they were then entitled under Section 12.04
in favour of such resolution at a meeting of Unitholders duly called for the
purpose.
ARTICLE XIII
CERTIFICATES, REGISTRATION AND TRANSFER OF UNITS
13.01 NATURE OF UNITS
The nature of a Unit and the relationship of a Unitholder to the
Trustee and the relationship of one Unitholder to another is as described in
Section 2.06 and 3.08 and the provisions of this Article XIII shall not in any
way alter the nature of Units or the said relationships of a Unitholder to the
Trustee and of one Unitholder to another, but are intended only to facilitate
the issuance of Unit Certificates evidencing the beneficial ownership of Units
and the recording of all such transactions whether by the Fund, securities
dealers, stock exchanges, transfer agents, registrars or other Persons.
13.02 CERTIFICATES
The forms of Unit Certificates representing the classes of Units, other
than the form of Unit Certificate representing the Class A Units which is set
out in Schedule "D" hereto and the form of Unit Certificate representing the
Trust Units which is set out in Schedule "E" hereto, shall be such as is from
time to time authorized by the Trustee. Each such Unit Certificate shall be
signed manually on behalf of the Trustee. Any additional signature required to
appear on such Unit Certificate by the Trustee may be printed, lithographed or
otherwise mechanically reproduced thereon and, in such event, Unit Certificates
so signed are as valid as if they had been signed manually. Any Unit
Certificate which has one manual signature as hereinbefore provided shall be
valid notwithstanding that one or more of the persons whose signature is
printed, lithographed or mechanically reproduced no longer holds office at the
date of issuance of such Unit Certificate.
13.03 CONTENTS OF CERTIFICATE
Until otherwise determined by the Trustee, each Unit Certificate shall
legibly set forth on the face thereof, INTER ALIA, the following:
a) the name of the Fund and the words "a trust created under the laws of
the Province of Alberta by a Trust Indenture dated as of December 2,
1988" or words of like effect;
b) the name of the Person to whom the Unit Certificate is issued as
Unitholder;
c) the number of Units represented thereby and that the Units represented
thereby are fully paid;
d) subject to subsection 13.03(e), that the Units represented thereby are
transferable;
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e) if there are any restrictions on the transferability of such Units, the
nature of such restrictions;
f) if the Units represented thereby are convertible into any other
security of the Fund, that such Units are convertible upon the terms
set out in this Indenture; and
g) "The Units represented by this certificate are issued upon the terms
and subject to the conditions of the Trust Indenture, which Trust
Indenture is binding upon all holders of Units and, by acceptance of
this certificate, the holder assents to the terms and conditions of the
Trust Indenture. A copy of the Trust Indenture pursuant to which this
certificate and the Units represented thereby are issued may be
obtained by any Unitholder on demand and without fee from the head
office of the Fund." or words of like effect.
Until otherwise determined by the Trustee, each such Unit Certificate
shall legibly set forth on the face or the reverse side thereof, INTER ALIA, an
appropriate form of notice of exercise of right of redemption.
The Unit Certificates may be engraved, printed or lithographed, or
partly in one form and partly in another, as the Corporation may determine.
13.04 REGISTERS OF UNITHOLDERS
A register or registers shall be kept at the principal corporate trust
office of the Trustee, which register shall contain the names and addresses of
the Unitholders, the respective numbers and classes of Units held by them, the
certificate numbers of the Unit Certificates representing such Units and a
record of all redemptions thereof. Only Unitholders whose Unit Certificates are
so recorded shall be entitled to receive distributions or to exercise or enjoy
the rights of Unitholders hereunder. The Trustee shall have the right to treat
the Person registered as a Unitholder on the registers of the Fund as the owner
of such Units for all purposes, including, without limitation, payment of any
distribution, giving notice to Unitholders and determining the right to attend
and vote at meetings of Unitholders.
13.05 SUCCESSORS OF UNITHOLDERS
Any Person becoming entitled to any Units shall be recorded as the
holder of such Units and shall receive a new Unit Certificate therefore upon
production of evidence satisfactory to the Trustee thereof and delivery of the
existing Unit Certificate to the Trustee, but until such record is made the
Unitholder of record shall continue to be and be deemed to be the holder of
such Units for all purposes whether or not the Trustee shall have actual or
other notice of such death, or other event.
13.06 UNITS HELD JOINTLY OR IN A FIDUCIARY CAPACITY
The Trustee may treat two or more Persons holding any Units as joint
owners of the entire interest therein unless their ownership is expressly
otherwise recorded on the registers of the Fund, but no entry shall be made in
the registers or on any Unit Certificate that any Person is in any other manner
entitled to any future, limited or contingent interest in any Units; provided,
however, that any Person recorded as a Unitholder may, subject to the
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provisions hereinafter contained, be described in the registers or on any Unit
Certificate as a fiduciary of any kind and any customary words may be added to
the description of the holder to identify the nature of such fiduciary
relationship.
13.07 PERFORMANCE OF TRUST
The Trustee, the Unitholders and any officer or agent of the Trustee
shall not be bound to be responsible for or otherwise inquire into or ensure
the performance of any trust, express, implied or constructive, or of any
charge, pledge or equity to which any of the Units or any interest therein are
or may be subject, or to ascertain or enquire whether any transfer of any such
Units or interests therein by any such Unitholder or by his personal
representatives is authorized by such trust, charge, pledge, or equity, or to
recognize any Person as having any interest therein except for the Person
recorded as Unitholder.
13.08 LOST CERTIFICATES
In the event that any Unit Certificate is lost, stolen, destroyed or
mutilated, the Trustee may authorize the issuances of a new Unit Certificate
for the same number of Units in lieu thereof. The Trustee may in its
discretion, before the issuance of such new Unit Certificate, require the owner
of the lost, stolen, destroyed or mutilated Unit Certificate, or the legal
representative of the owner, to make an affidavit or statutory declaration
setting forth such facts as to the loss, theft, destruction or mutilation as
the Trustee may deem necessary, to surrender any mutilated Unit Certificate and
may require the applicant to supply to the Fund a "lost certificate bond" or a
similar bond in such reasonable sum as the Trustee may direct indemnifying the
Trustee and its agent for so doing. The Trustee shall have the power to require
from an insurer or insurers a blanket lost security bond or bonds in respect of
the replacement of lost, stolen, destroyed or mutilated Unit Certificates. The
Trustee shall pay all premiums and other funds of money payable for such
purpose out of the Trust Fund with such contribution, if any, by those insured
as may be determined by the Trustee in its sole discretion. If such blanket
lost security bond is required, the Trustee may authorize and direct (upon such
terms and conditions as the Trustee may from time to time impose) any agent to
whom the indemnity of such bond extends to take such action to replace any
lost, stolen, destroyed or mutilated Unit Certificate without further action or
approval by the Trustee.
13.09 DEATH OF A UNITHOLDER
The death of a Unitholder during the continuance of the Fund shall not
terminate the Fund or any of the mutual or respective rights and obligations
created by or arising under this Indenture nor give such Unitholder's personal
representative a right to an accounting or take any action in court or
otherwise against other Unitholders or the Trustee or the Fund property, but
shall merely entitle the personal representatives of the deceased Unitholder to
demand and receive, pursuant to the provisions hereof, a new Unit Certificate
for Units in place of the Unit Certificate held by the deceased Unitholder, and
upon the acceptance thereof such personal representatives shall succeed to all
rights of the deceased Unitholder under this Indenture.
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13.10 UNCLAIMED INTEREST OR DISTRIBUTION
In the event that the Trustee shall hold any amount of interest or
other distributable amount which is unclaimed or which cannot be paid for any
reason, the Trustee shall be under no obligation to invest or reinvest the same
but shall only be obliged to hold the same in a current interest-bearing
account pending payment to the Person or Persons entitled thereto. The Trustee
shall, as and when required by law, and may at any time prior to such required
time, pay all or part of such interest or other distributable amount so held to
the Public Trustee (or other appropriate government official or agency) whose
receipt shall be a good discharge and release of the Trustee.
ARTICLE XIV
TERMINATION
14.01 TERMINATION DATE
Unless terminated earlier under Section 14.02 the Trustee shall
commence to wind up the affairs of the Fund when there are no longer any Units
outstanding.
14.02 TERMINATION BY TRUSTEE WITH THE APPROVAL OF UNITHOLDERS
a) The Unitholders may vote by Extraordinary Resolution to terminate the
Fund at any meeting of Unitholders duly called by the Trustee for the
purpose of considering termination of the Fund, provided that such a
vote may only be held if requested in writing by the holders of not
less that 25% of votes attaching to the Units, or if the Units have
become ineligible for investment by registered retirement savings
plans, registered retirement income funds, deferred profit sharing
plans or registered education savings plans, as those terms are defined
in the Act.
b) For the purpose of this Section and notwithstanding the provisions of
Section 12.06(c), a quorum of 5% of the votes attaching to the issued
and outstanding Units must be present or represented by proxy at the
meeting at which the vote is taken.
14.03 PROCEDURE UPON TERMINATION
At least thirty (30) days before the day specified by the Extraordinary
Resolution as the date of termination the Trustee shall give notice of the
commencement of the winding-up of the affairs of the Fund and such notice of
any resolution approved by Unitholders under Section 14.02 shall designate the
time or times at which Unitholders may surrender their Units for cancellation
and the date at which the register of the Fund shall be closed.
14.04 POWERS OF THE TRUSTEE UPON TERMINATION
After the date referred to in Section 14.01 or the date on which a
resolution has been approved under Section 14.02, the Trustee shall carry on no
activities except for the purpose of winding up the affairs of the Fund as
hereinafter provided and, for this purpose, the Trustee shall continue to be
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vested with and may exercise all or any of the powers conferred upon the
Trustee under this Indenture.
14.05 SALE OF INVESTMENTS
After the date referred to in Section 14.04, the Trustee shall proceed
to wind up the affairs of the Fund as soon as may be reasonably practicable and
for such purpose shall sell and convert into money all investments and other
assets comprising the Trust Fund in one transaction or in a series of
transactions at public or private sale and do all other acts appropriate to
liquidate the Trust Fund.
If the Trustee is unable to sell all or any of the Royalty Units which
comprise part of the Trust Fund by the date set for termination as set out
herein, the Trustee may distribute the remaining Royalty Units directly to the
Unitholders on the same basis as the Royalty Units were acquired by the Trust
Fund on behalf of the Unitholders.
14.06 DISTRIBUTION OF PROCEEDS
After paying, retiring, discharging or making provision for the
payment, retirement or discharge of all known liabilities and obligations of
the Fund and providing for indemnity against any other outstanding liabilities
and obligations, the Trustee shall distribute the remaining part of the
proceeds of the sale of investment and other assets together with any cash
forming part of the Trust Fund among the Unitholders in the following manner:
a) the Trustee shall allocate to each Unitholder and each Unitholder shall
thereupon be entitled to enforce payment of his pro rata share of such
part of all amounts that would otherwise be included in computing
income of the Fund for the purposes of the INCOME TAX ACT for the year
and that are not payable to Unitholders in the year by virtue of any
provision of this Trust Indenture other than this Section 14.06;
b) the remaining part, if any, of the said proceeds, other assets and cash
shall be distributed among the Unitholders in accordance with their pro
rata shares.
14.07 REDEMPTION AND TERMINATION BY OTHER DISPOSITION
If the Royalty Units which comprise part of the Trust Fund are redeemed
or otherwise cease to exist, the Trustee will distribute to the Unitholders on
a pro rata basis the net proceeds of redemption or share of assets that a
Royalty Unitholder is entitled to receive. If the balance of the other
investments or assets comprising the Trust Fund are sold or otherwise disposed
of, the Trustee will distribute to the Unitholders on a pro rata basis the net
proceeds from such disposition and the Fund shall terminate.
14.08 FURTHER NOTICE TO UNITHOLDERS
In the event that all of the Unitholders shall not surrender their
Units for cancellation within six (6) months after the time specified in the
notice or resolution referred to in Section 14.03 the Trustee shall give
further notice to the remaining Unitholders to surrender their Units for
cancellation and, if within one year after the further notice, all the Units
shall not have been surrendered for cancellation, such remaining Units shall be
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deemed to be cancelled without prejudice to the rights of the holders of such
Units, if applicable, to receive their PRO RATA shares of the amounts referred
to in Section 14.06 and the Trustee may either take appropriate steps, or
appoint an agent to take appropriate steps, to contact such Unitholders
(deducting all expenses thereby incurred from the amounts to which such
Unitholders are entitled as aforesaid) or, in the discretion of the Trustee,
may pay such amounts into court.
14.09 RESPONSIBILITY OF TRUSTEE AFTER SALE AND CONVERSION
The Trustee shall be under no obligation to invest the proceeds of any
sale of investments or other assets or cash forming part of the Trust Fund
after the date referred to in Section 14.04 and, after such sale, the sole
obligation of the Trustee under this Indenture shall be to hold such proceeds
in trust for distribution under Section 14.06.
ARTICLE XV
SUPPLEMENTAL INDENTURES
15.01 PROVISION FOR SUPPLEMENTAL INDENTURES FOR CERTAIN PURPOSES
From time to time the Corporation (when authorized by a resolution of
the directors) and the Trustee may, subject to the provisions hereof, and they
shall, when so directed in accordance with the provisions hereof, execute and
deliver by their proper officers, indentures or instruments supplemental
hereto, which thereafter shall form part hereof, for any one or more or all of
the following purposes:
a) adding to the provisions hereof such additional covenants and
enforcement provisions as, in the opinion of Counsel, are necessary or
advisable in the premises, provided that the same are not in the
opinion of the Trustee prejudicial to the interests of the Unitholders;
b) giving effect to any Extraordinary Resolution or Ordinary Resolution
passed as provided in Article XII;
c) making such provisions not inconsistent with this Indenture as may be
necessary or desirable with respect to matters or questions arising
hereunder, provided that such provisions are not, in the opinion of the
Trustee, prejudicial to the interests of the Unitholders;
d) adding to or altering the provisions hereon in respect of the exchange
of Unit Certificates, and making any modification in the form of Unit
Certificates which does not materially affect the substance thereof;
e) modifying any of the provisions of this Indenture, including relieving
the Corporation from any of the obligations, conditions or restrictions
herein contained, provided that such modification or relief shall be or
become operative or effective only if, in the opinion of the Trustee,
such modification or relief in no way prejudices any of the rights of
the Unitholders or the Trustee, provided further that the Trustee may
- 40 -
in its sole discretion decline to enter into any such supplemental
indenture which in its opinion may not afford adequate protection to
the Trustee when the same shall become operative; and
f) for any other purpose not inconsistent with the terms of this
Indenture, including the correction or rectification of any
ambiguities, defective or inconsistent provisions, errors, mistakes or
omissions herein, provided that in the opinion of the Trustee the
rights of the Trustee and of the Unitholders are not prejudiced
thereby.
ARTICLE XVI
GENERAL
16.01 NOTICES
Any notice required to be given under this Indenture shall be given to
the Unitholders by letter or circular sent through ordinary post addressed to
each registered holder at his last address appearing on the register; provided
that if there is a general discontinuance of postal service due to strike,
lockout or otherwise, such notice may be given by publication twice in the
National Edition of The Globe and Mail or any other newspaper having national
circulation in Canada; provided further that if there is no newspaper having
national circulation, then by publishing twice in a newspaper in each city
where the register or a branch register is maintained. Any notice so given
shall be deemed to have been given on the day following that on which the
letter or circular was posted or, in the case of notice being given by
publication, after publishing such notice twice in the designated newspaper or
newspapers. In proving notice was posted, it shall be sufficient to prove that
such letter or circular was properly addressed, stamped and posted.
16.02 FAILURE TO GIVE NOTICE
The failure by the Trustee, by accident or omission or otherwise
unintentionally, to give any Unitholder any notice provided for herein shall
not affect the validity, effect, taking effect of any action referred to in
such notice, and the Trustee shall not be liable to any Unitholder for any such
failure.
16.03 JOINT HOLDERS
Service of a notice or document on any one of several joint holders of
Units shall be deemed effective service on the other joint holders.
16.04 SERVICE OF NOTICE
Any notice or document sent by post to or left at the address of a
Unitholder pursuant to this Article shall, notwithstanding the death or
bankruptcy of such Unitholder, and whether or not the Trustee has notice of
such death or bankruptcy, be deemed to have been fully served and such service
shall be deemed sufficient service on all Persons interested in the Units
concerned.
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16.05 INFORMATION AVAILABLE TO UNITHOLDERS
Each Unitholder shall have the right to obtain, on demand and on
payment of reasonable reproduction costs from the head office of the Fund, a
copy of the Royalty Indenture, the Unanimous Shareholder Agreement, the
Management Agreement, the Trust Indenture and the supplemental indenture, if
any, relating to Units held by that Unitholder and shall be entitled to
inspect, and, on payment of a reasonable fee thereof, obtain a list of the
Unitholders for purposes connected with the Fund.
16.06 INCOME TAX: OBLIGATIONS OF THE TRUSTEE
The Trustee shall satisfy, perform and discharge all obligations and
responsibilities of the Trustee under the Act (including any obligations of the
Fund under Part XIII of the Act and responsibility to file for and collect ARC)
and neither the Fund nor the Trustee shall be accountable or liable to any
Unitholder by reason of any act or acts of the Trustee consistent with any such
obligations or responsibilities.
16.07 INCOME TAX: DESIGNATIONS
In the return of its income under Part I of the Act for each year the
Fund shall make such designations to Unitholders with respect to any amounts
distributed or payable to Unitholders in the year including, without
restricting the generality of the foregoing, designations with respect to
Reimbursed Crown Charges, to any taxable capital gains realized and distributed
to Unitholders by the Fund in the year, and to interest payable to Unitholders
in the year, as shall be permitted under the provisions of the Act and as the
Trustee in its sole discretion shall deem to be reasonable and equitable. In
the first tax year, in filing a return of income for the Fund, the Fund shall
elect that the Fund be deemed to be a mutual fund trust for the entire year.
16.08 INCOME TAX DEDUCTIONS
The Trustee shall claim the maximum deductions available to the Fund
for the purposes of computing its income pursuant to the provisions of the Act
to the extent required to reduce the taxable income of the Fund to nil or to
the extent desirable in the best interests of the Unitholders.
16.09 FISCAL YEAR
The fiscal year of the Fund shall end on December 31 of each year.
ARTICLE XVII
AUDITORS
17.01 QUALIFICATION OF AUDITORS
The Auditors shall be an independent recognized firm of chartered
accountants which has an office within Alberta.
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17.02 APPOINTMENT OF AUDITORS
The Trustee hereby appoints KPMG LLP as the Auditors of the Fund, to
hold such office until the first annual meeting of the Unitholders at such
remuneration as may be approved by the Trustee. The Auditors will be selected
at each annual meeting of Unitholders.
17.03 CHANGE OF AUDITORS
The Auditors may at any time be removed by the Trustee with the
approval of a majority of the votes cast by Unitholders at a meeting of
Unitholders duly called for the purpose and, upon the resignation or the
removal of Auditors as aforesaid, new Auditors may be appointed by the Trustee
with the approval of a majority of votes cast by Unitholders at a meeting duly
called for the purpose.
17.04 REPORTS OF AUDITORS
The Auditors shall audit the accounts of the Fund at least once in each
year and a report of the Auditors with respect to the annual financial
statements of the Fund shall be prepared on a consolidated basis with the
Corporation and shall be provided to each Unitholder with notice of the Annual
General Meeting of the Fund.
ARTICLE XVIII
MISCELLANEOUS
18.01 SUCCESSORS AND ASSIGNS
The provisions of this Indenture shall enure to the benefit of, and be
binding upon, the parties and their successors and assigns.
18.02 COUNTERPARTS
This Indenture may be simultaneously executed in several counterparts,
each of which so executed shall be deemed to be an original, and such
counterparts, together, shall constitute but one and the same instrument, which
shall be sufficiently evidenced by any such original counterparts.
18.03 SEVERABILITY
If any provision of this Indenture shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect or render invalid or unenforceable such provision in any other
jurisdiction or any other provision of this Indenture in any jurisdiction.
18.04 NOTICE TO TRUSTEE
Any written notice of written communication given to the Trustee shall
be addressed to the attention of the Fund at the principal trust office of the
Trustee in Calgary or to the attention of any employee or officer of the
- 43 -
Trustee who shall be designated by the Trustee, and shall be deemed to have
been duly given only on the earlier of the date:
a) when the same is personally delivered to Suite 710 - ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇; or
b) in the case of dispatch by telegraph, telex or telecommunication
device, three (3) hours after deposit for dispatch in a public office
for origination of such telegram, telex message or similar
telecommunication or three (3) hours after dispatch by means of a
private telex or other telecommunication device, addressed as
aforesaid; or
c) in the case of mailing, five (5) days after deposit in the Canadian
mail, unregistered with postage prepaid, addressed to the office
(referred to above) of the party to whom notice is to be given.
18.05 NOTICE TO CORPORATION
a) Any notice to the Corporation under the provisions of this Indenture
shall be valid and effective if delivered or if given by registered
letter, postage prepaid, addressed to the Corporation at ▇▇▇▇▇ ▇▇▇▇,
▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇, Attention: the
President or the Secretary, and shall be deemed to have been
effectively given on the date of delivery or, if mailed, from the time
when in the ordinary course of post the said letter should have reached
its destination, which for the purpose of this Indenture shall be
deemed to be five (5) days after posting.
b) The Corporation may from time to time notify the Trustee in writing of
a change of address which thereafter, until changed by like notice,
shall be the address of the Corporation for all purposes of this
Indenture.
c) If, by reason of a strike, lockout or other work stoppage, actual or
threatened, involving postal employees, any notice to be given to the
Corporation could be reasonably considered unlikely to reach its
destination, such notice shall be valid and effective only if it is
delivered to the named officer of the Corporation, or if it is
delivered to such party at the appropriate address provided in
subsection 18.05(a), by cable, telegram, telex or other means of
prepaid, transmitted and recorded communication.
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IN WITNESS WHEREOF each of the parties has caused these presents to be
executed by its proper officers duly authorized in its behalf as of the 11th
day of June, 2007.
PENGROWTH CORPORATION
Per: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Per: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
COMPUTERSHARE TRUST COMPANY OF CANADA
Per: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
Per: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
SCHEDULE "A"
To the annexed amended and restated trust indenture (the "INDENTURE") dated as
of June 11, 2007 and made between PENGROWTH CORPORATION and COMPUTERSHARE TRUST
COMPANY OF CANADA.
The Class A Units shall have the rights and be subject to the
limitations, restrictions and conditions set out in the Indenture, as
supplemented or amended by the rights, limitations, restrictions and conditions
applicable to the Class A Units as set out below:
A.1 DEFINITIONS
In this Schedule "A" and in the Class A Units, unless the context
otherwise requires, capitalized terms shall have the meaning set out in the
Indenture.
A.2 PERMITTED STOCK EXCHANGE LISTINGS
The Class A Units may not be listed and posted for trading on any stock
exchange.
A.3 TRANSFER RESTRICTIONS
The Class A Units may not be transferred by the holder thereof, with
the exception of a transfer to the Fund pursuant to Article VII of the
Indenture.
A.5 CONVERSION
a) At any time, a holder of one or more Class A Units shall have the right
at his or her option to convert, subject to these provisions, any one
or more of such Class A Units into Trust Units on a one for one basis.
b) The conversion of one or more Class A Units shall be effected by the
deposit of the Unit Certificate or Certificates representing the same
at any time during usual business hours at any office of the transfer
agent of the Fund at which the Class A Units are transferable, together
with a written conversion form in form satisfactory to the Corporation,
on behalf of the Fund, duly executed by the registered holder or his
attorney duly authorized in writing, in which instrument such holder
may elect to convert only part of the Class A Units represented by such
Unit Certificate or Certificates, in which event the Corporation, on
behalf of the Fund, shall issue and deliver or cause to be delivered to
such holder, at the expense of the holder, a new Unit Certificate
representing the Class A Units represented by such Unit Certificate or
Certificates which have not been converted.
c) As promptly as practicable after the deposit of any Class A Units for
conversion, the Corporation, on behalf of the Fund, shall issue and
shall deliver or cause to be delivered to or to the written order of
the holder of the Class A Units so surrendered, a Unit Certificate or
Certificates issued in the name of such holder representing the number
of Trust Units to which such holder is entitled. Such conversion shall
be deemed to have been made at the close of business on the date such
- 2 -
Class A Units shall have been properly deposited for conversion, so
that the rights of the holder of such Class A Units as the holder
thereof shall cease at such time and the person or persons entitled to
receive Trust Units upon such conversion shall be treated for all
purposes as having become the holder or holders of record of such Trust
Units at such time; provided, however, that no such deposit on any date
when the Fund's register of transfers of Trust Units shall be properly
closed shall be effective to constitute the person or persons entitled
to receive Trust Units upon such conversion as the holder or holders of
record of such Trust Units on such date, but such deposit shall be
effective to constitute the person or persons entitled to receive such
Trust Units as the holder or holders of record thereof for all purposes
when the Fund's register of transfers of Trust Units next open. For
these purposes the date of deposit of any Class A Units for conversion
shall be deemed to be the date when the Unit Certificate representing
such Class A Units accompanied by a satisfactory conversion form is
received by a transfer agent of the Fund as provided for herein.
SCHEDULE "B"
To the annexed amended and restated trust indenture (the "INDENTURE") dated as
of June 11, 2007 and made between PENGROWTH CORPORATION and COMPUTERSHARE TRUST
COMPANY OF CANADA.
The Trust Units shall have the rights and be subject to the
limitations, restrictions and conditions set out in the Indenture, as
supplemented or amended by the rights, limitations, restrictions and conditions
applicable to the Trust Units as set out below:
B.1 DEFINITIONS
In this Schedule "B" and in the Trust Units, unless the context
otherwise requires, capitalized terms shall have the meaning set out in the
Indenture.
B.2 PERMITTED STOCK EXCHANGE LISTINGS
The Trust Units may be listed and posted for trading on either or both
of the Toronto Stock Exchange and the New York Stock Exchange and any other
exchange or exchanges as may be determined by the Directors of the Corporation.
SCHEDULE "C"
To the annexed amended and restated trust indenture (the "INDENTURE")
dated as of June 11, 2007 and made between PENGROWTH CORPORATION and
COMPUTERSHARE TRUST COMPANY OF CANADA.
C.1 DEFINITIONS
In this Schedule "C", unless the context otherwise requires,
capitalized terms shall have the meaning set out in the Indenture.
▇.▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇
▇▇ the Reorganization Time, all issued and outstanding Class B Units
shall be renamed as Trust Units, and the register of holders of such Class B
Units shall be renamed as the register of holders of Trust Units.
C.3 CONVERSION OF PRIOR TRUST UNITS AND CLASS A UNITS
a) At the Reorganization Time: (i) all issued and outstanding Prior Trust
Units; and (ii) all issued and outstanding Class A Units (other than
Class A Units held by a Unitholder who provides a duly completed
election and Unitholder's Declaration in accordance with Section C.4)
shall be converted into Trust Units on the basis of one Trust Unit for
each Prior Trust Unit or Class A Unit, as applicable, held, without any
further act or formality.
b) Upon completion of the conversion referred to in Section C.3(a), each
holder of Prior Trust Units or Class A Units, as the case may be,
immediately prior to the Reorganization Time that has had such Units
converted to Trust Units shall cease to be a holder of such Prior Trust
Units or Class A Units, and shall be deemed to be a holder of a number
of Trust Units equal to the number of Prior Trust Units or Class A
Units, as applicable, held by such Unitholder immediately prior to the
Reorganization Time. Upon completion of the conversion referred to in
Section C.3(a), such holder's name shall be removed from the register
of Prior Trust Units or Class A Units, as applicable, and added to the
register of holders of Trust Units accordingly.
C.4 REORGANIZATION PROCEDURE
On June 27, 2006, the Board of Directors of the Corporation caused the
following to occur:
a) a letter of transmittal was sent to all registered holders of Class A
Units; and
b) an election and Unitholder's Declaration was sent to all registered
holders of Class A Units.
All registered holders of Class A Units who provided an election and
Unitholder's Declaration to the registrar and transfer agent of the Fund on or
before 5:00 p.m. (Calgary time) on July 25, 2006 which confirmed that such
holder is not a Non-Resident, shall not have such Class A Units converted to
Trust Units pursuant to Section C.3(a) hereof.
- 2 -
All registered holders of Prior Trust Units, and all registered holders of
Class A Units who did not provide a duly completed election and Unitholder's
Declaration to the registrar and transfer agent of the Fund on or before 5:00
p.m. (Calgary time) on July 25, 2006, which confirmed that such holder is not a
Non Resident, shall have such Prior Trust Units and Class A Units converted to
Trust Units pursuant to Section C.3(a) hereof without further act or formality.
In respect of any registered or beneficial holder of Units, the Corporation, on
behalf of the Fund, may at any time and from time to time deem the Units held
by such registered or beneficial holder to be renamed as, or converted into,
Trust Units without any further action on the part of the holder thereof in the
sole and absolute discretion of the Corporation including upon:
a) the receipt by the Fund of an election and Unitholder's Declaration
acceptable to the Corporation indicating that the holder is a
Non-Resident; or
b) the passing of the Reorganization Time with the registrar and transfer
agent of the Fund not having received from the Unitholder an election
and Unitholder's Declaration.
C.6 ISSUANCE OF CERTIFICATES REPRESENTING TRUST UNITS
a) Upon surrender to the Fund's registrar and transfer agent of a Unit
Certificate which, prior to the Reorganization Time, represented
outstanding Prior Trust Units, Class A Units or Class B Units together
with a letter of transmittal, where applicable, and together with such
additional documents and instruments as the registrar and transfer
agent may reasonably require, the holder of such surrendered Unit
Certificate shall be entitled to receive in exchange therefor, and the
transfer agent of the Fund shall deliver to such holder as soon as
practicable, a Unit Certificate representing that number of Trust Units
to which such holder's Units have been renamed or converted and any
Unit Certificate representing Units so surrendered shall forthwith be
cancelled.
b) If any Unit Certificate which, prior to the Reorganization Time,
represented outstanding Prior Trust Units, Class A Units or Class B
Units which were renamed as, or converted into, Trust Units pursuant to
Section C.2 or C.3(a) has been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming such Unit
Certificate to be lost, stolen or destroyed, and delivery to the
transfer agent of the Fund of such additional documents and
instructions as the transfer agent of the Fund may reasonably require,
the transfer agent will issue in exchange for such lost, stolen or
destroyed Unit Certificate, Unit Certificates representing the Trust
Units to which such Unitholder is entitled. When seeking such Unit
Certificate in exchange for any lost, stolen or destroyed Unit
Certificate, the person to whom Unit Certificates representing Trust
Units are to be issued shall, as a condition precedent to the issuance
thereof, give a bond satisfactory to the Corporation, on behalf of the
Fund, and the transfer agent of the Fund, in such sum as the
Corporation, on behalf of the Fund, and the transfer agent of the Fund
may direct or otherwise indemnify the Fund and its transfer agent in a
manner satisfactory to the Corporation, on behalf of the Fund, and the
transfer agent of the Fund against any claim that may be made against
the Fund or its transfer agent with respect to the Unit Certificate
alleged to have been lost, stolen or destroyed.
SCHEDULE "D"
To the annexed amended and restated trust indenture dated as of June 11, 2007
and made between PENGROWTH CORPORATION and COMPUTERSHARE TRUST COMPANY OF
CANADA.
(Form of Unit Certificate for the Class A Trust Units)
CLASS A TRUST UNITS
Pengrowth Energy Trust
(a trust created under the laws of the Province of Alberta
by a Trust Indenture originally dated as of December 2, 1988
and amended and restated as of June 11, 2007)
No.
------------------------------- -----------------------------------
Class A Trust Units
CUSIP NO. 706902 30 1
THIS CERTIFIES THAT:
is the registered holder of the number of fully paid Class A Trust
Units issued by Pengrowth Energy Trust (the "Fund") indicated above.
The Class A Trust Units represented by this certificate are
non-transferable.
The Class A Trust Units represented by this certificate are issued upon
the terms and subject to the conditions of an indenture (which indenture
together with all other instruments supplemental or ancillary thereto is herein
referred to as the "Trust Indenture") dated as of June 11, 2007 (amending and
restating the trust indenture originally dated December 2, 1988) and made
between Pengrowth Corporation and Computershare Trust Company of Canada (the
"Trustee"), which Trust Indenture is binding upon all holders of Units and, by
acceptance of this certificate, the holder assents to the terms and conditions
of the Trust Indenture. Terms defined in the Trust Indenture have the same
meanings when used herein.
For information as to the right of holders of Class A Trust Units to
convert Class A Trust Units into Trust Units, see the reverse of this
certificate.
The Trust Indenture contains provisions for the holding of meetings of
Unitholders and rendering resolutions passed at such meetings and instruments
in writing signed by the holders of a specific majority of the Units
outstanding binding upon all Unitholders.
A copy of the Trust Indenture pursuant to which this certificate and
the Class A Trust Units represented hereby are issued may be obtained by any
Unitholder on demand and without fee from the head office of the Fund.
- 2 -
This certificate may only be converted or redeemed, upon compliance
with the conditions prescribed in the Trust Indenture, on one of the registers
of transfers to be kept at the offices of the Trustee in the cities of Calgary,
Vancouver, Toronto and Montreal and Computershare Trust Company, Inc. in Denver
and New York and at such other place or places, if any, or by such other
registrar or registrars, if any, as the Fund with the approval of the Trustee
may designate, 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 writing in form and execution satisfactory to the
Trustee, and upon compliance with such reasonable requirements as the Trustee
or other registrar may prescribe.
This certificate shall not be valid for any purpose until it shall have
been countersigned and registered by the Trustee under the Trust Indenture.
IN WITNESS WHEREOF Pengrowth Corporation has caused its corporate seal
to be hereunto affixed and this certificate to be signed by its duly authorized
officers.
DATED ___________________.
PENGROWTH CORPORATION
Per:
-----------------------------
President c/s
Per:
-----------------------------
Corporate Secretary
(FORM OF TRUSTEE'S CERTIFICATE)
This certificate is one of the Unit Certificates referred to in the
Trust Indenture within mentioned.
COMPUTERSHARE TRUST COMPANY OF CANADA
Per:
-----------------------------
Authorized Officer
Per:
-----------------------------
Authorized Officer
- 2 -
[Reverse of Unit Certificate]
Conversion Right
The Trust Indenture provides that in certain circumstances a holder of
Class A Trust Units may elect to convert Class A Trust Units into Trust Units.
Any notice requesting the conversion of Class A Trust Units shall be given
during business hours on any Business Day to the Trustee at its principal
office in the Cities of Calgary, Vancouver, Toronto and Montreal or
Computershare Trust Company Inc. in Denver or New York by delivery to the
Trustee of a certificate that represents the Class A Trust Units to be
converted and that is accompanied by a duly completed and properly executed
notice requesting conversion which appears on the back of such certificate. No
such manner of execution shall be sufficient unless the same is, in all
respects, satisfactory to the Trustee and is accompanied by such further
evidence that the Trustee may reasonably require with respect to the identity,
capacity or authority of a person giving such notice.
Exercise of Redemption Right
A notice requiring the Trustee to redeem Class A Trust Units shall be
given during business hours on any Business Day to the Trustee at its principal
office in the Cities of Calgary, Vancouver, Toronto and Montreal or
Computershare Trust Company, Inc. in Denver or New York by delivery to the
Trustee of a certificate that represents the Class A Trust Units to be redeemed
by the Trustee and that is either properly endorsed for transfer or accompanied
by a duly completed and properly executed written instrument or instruments of
transfer together with the notice requesting redemption which appears on the
back of such certificate duly completed and properly executed. No such form of
endorsement or manner of execution shall be sufficient unless the same is, in
all respects, satisfactory to the Trustee and is accompanied by any further
evidence that the Trustee may reasonably require with respect to the identity,
capacity or authority of the person giving such notice.
- 3 -
NOTICE OF CONVERSION
TO: PENGROWTH ENERGY TRUST
The undersigned registered holder of this Class A Trust Unit certificate hereby
tenders the Class A Trust Units represented by this Class A Trust Unit
certificate to Pengrowth Energy Trust for conversion into Trust Units, subject
to the terms and conditions set out in the Trust Indenture.
If less than the full number of the within Class A Trust Units is to be
converted, indicate in the space provided the number to be converted.
Class A Trust Units Only
------------------------
Signature: In presence of:
------------------------- -------------------------
Holder Witness
Notice: The signature to this conversion notice must correspond with the name
as written upon the face of the certificate in every particular, without
alteration or enlargement, or any change whatsoever and must be guaranteed by a
major Canadian Schedule I chartered bank, a major trust company in Canada or a
member of an acceptable Medallion Signature Guarantee Program (STAMP, SEMP,
MSP). The Guarantor must affix a stamp bearing the actual words "Signature
Guaranteed".
In the USA, signature guarantees must be done by a member of a "Medallion
Signature Guarantee Program" only.
Signature guarantees are not accepted from Treasury Branches, Credit Unions or
Caisses Populaires unless they are members of the Stamp Medallion Program.
NOTICE OF REDEMPTION
TO: PENGROWTH ENERGY TRUST
The undersigned registered holder of this Class A Trust Unit certificate hereby
tenders the Class A Trust Units represented by this Class A Trust Unit
certificate to Pengrowth Energy Trust for redemption, subject to the terms and
conditions set out in the Trust Indenture. This delivery constitutes a transfer
of the tendered Class A Trust Units to Pengrowth Energy Trust to enable
Pengrowth Energy Trust to effect the redemption. By endorsing this notice, the
undersigned represents and warrants that the Class A Trust Units tendered are
free and clear of any liens or encumbrances of any kind.
If less than the full number of the within Class A Trust Units is to be
redeemed, indicate in the space provided the number to be redeemed.
Class A Trust Units Only
------------------------
Signature: In presence of:
------------------------- -------------------------
Holder Witness
Notice: The signature to this redemption notice must correspond with the name
as written upon the face of the certificate in every particular, without
alteration or enlargement, or any change whatsoever and must be guaranteed by a
major Canadian Schedule I chartered bank, a major trust company in Canada or a
member of an acceptable Medallion Signature Guarantee Program (STAMP, SEMP,
MSP). The Guarantor must affix a stamp bearing the actual words "Signature
Guaranteed".
In the USA, signature guarantees must be done by a member of a "Medallion
Signature Guarantee Program" only.
Signature guarantees are not accepted from Treasury Branches, Credit Unions or
Caisses Populaires unless they are members of the Stamp Medallion Program.
SCHEDULE "E"
To the annexed amended and restated trust indenture dated as of June 11, 2007
and made between PENGROWTH CORPORATION and COMPUTERSHARE TRUST COMPANY OF
CANADA.
(Form of Unit Certificate for the Trust Units)
TRUST UNITS
Pengrowth Energy Trust
(a trust created under the laws of the Province of Alberta
by a Trust Indenture originally dated as of December 2, 1988
and amended and restated as of June 11, 2007)
No.
------------------------------- -----------------------------------
Trust Units
CUSIP NO. 706902 50 9
THIS CERTIFIES THAT:
is the registered holder of the number of fully paid Trust Units issued
by Pengrowth Energy Trust (the "Fund") indicated above.
The Trust Units represented by this certificate are transferable.
The Trust Units represented by this certificate are issued upon the
terms and subject to the conditions of an indenture (which indenture together
with all other instruments supplemental or ancillary thereto is herein referred
to as the "Trust Indenture") dated as of June 11, 2007 (amending and restating
the trust indenture originally dated December 2, 1988) and made between
Pengrowth Corporation and Computershare Trust Company of Canada (the
"Trustee"), which Trust Indenture is binding upon all holders of Units and, by
acceptance of this certificate, the holder assents to the terms and conditions
of the Trust Indenture. Terms defined in the Trust Indenture have the same
meanings when used herein.
The Trust Indenture contains provisions for the holding of meetings of
Unitholders and rendering resolutions passed at such meetings and instruments
in writing signed by the holders of a specific majority of the Units
outstanding binding upon all Unitholders.
A copy of the Trust Indenture pursuant to which this certificate and
the Trust Units represented hereby are issued may be obtained by any Unitholder
on demand and without fee from the head office of the Fund.
This certificate may only be transferred, upon compliance with the
conditions prescribed in the Trust Indenture, on one of the registers of
transfers to be kept at the offices of the Trustee in the cities of Calgary,
Vancouver, Toronto and Montreal and Computershare Trust Company, Inc. in Denver
and New York and at such other place or places, if any, or by such other
registrar or registrars, if any, as the Fund with the approval of the Trustee
may designate, 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 writing in form and execution satisfactory to the
Trustee, and upon compliance with such reasonable requirements as the Trustee
or other registrar may prescribe.
This certificate shall not be valid for any purpose until it shall have
been countersigned and registered by the Trustee under the Trust Indenture.
- 2 -
IN WITNESS WHEREOF Pengrowth Corporation has caused its corporate seal
to be hereunto affixed and this certificate to be signed by its duly authorized
officers.
DATED ____________________.
PENGROWTH CORPORATION
Per:
-----------------------------
President c/s
Per:
-----------------------------
Corporate Secretary
(FORM OF TRUSTEE'S CERTIFICATE)
This certificate is one of the Unit Certificates referred to in the
Trust Indenture within mentioned.
COMPUTERSHARE TRUST COMPANY OF CANADA
Per:
-----------------------------
Authorized Officer
Per:
-----------------------------
Authorized Officer
- 2 -
[Reverse of Unit Certificate]
Exercise of Transfer or Redemption Right
A notice requiring the Trustee to transfer or redeem Trust Units shall
be given during business hours on any Business Day to the Trustee at its
principal office in the Cities of Calgary, Vancouver, Toronto and Montreal or
Computershare Trust Company Inc. in Denver or New York by delivery to the
Trustee of a certificate that represents the Trust Units to be transferred or
redeemed by the Trustee and that is either properly endorsed for transfer or
accompanied by a duly completed and properly executed written instrument or
instruments of transfer together with, in the case of redemption, the notice
requesting redemption which appears on the back of such certificate duly
completed and properly executed. No such form of endorsement or manner of
execution shall be sufficient unless the same is, in all respects, satisfactory
to the Trustee and is accompanied by any further evidence that the Trustee may
reasonably require with respect to the identity, capacity or authority of the
person giving such notice.
TRANSFER FORM
For value received the undersigned hereby sell(s), assign(s) and
transfer(s) unto
-----------------------------------------------------------------------
(Name of Transferee)
Trust Units of Pengrowth Energy Trust represented by this certificate.
DATED:
------------------------
Signature: In presence of:
---------------------- ---------------------------
Transferor Witness
NOTICE: The signature to this transfer must correspond with the name as written
upon the face of the certificate, in every particular, without alteration or
enlargement, or any change whatsoever and must be guaranteed by a major
Canadian Schedule I chartered bank, a major trust company in Canada or a member
of an acceptable Medallion Signature Guarantee Program (STAMP, SEMP, MSP). The
Guarantor must affix a stamp bearing the actual words "Signature Guaranteed".
In the USA, signature guarantees must be done by a member of a "Medallion
Signature Guarantee Program" only.
Signature guarantees are not accepted from Treasury Branches, Credit Unions or
Caisses Populaires unless they are members of the Stamp Medallion Program.
NOTICE OF REDEMPTION
TO: PENGROWTH ENERGY TRUST
The undersigned registered holder of this Trust Unit certificate hereby tenders
the Trust Units represented by this Trust Unit certificate to Pengrowth Energy
Trust for redemption, subject to the terms and conditions set out in the Trust
Indenture. This delivery constitutes a transfer of the tendered Trust Units to
Pengrowth Energy Trust to enable Pengrowth Energy Trust to effect the
redemption. By endorsing this notice, the undersigned represents and warrants
that the Trust Units tendered are free and clear of any liens or encumbrances
of any kind.
If less than the full number of the within Trust Units is to be redeemed,
indicate in the space provided the number to be redeemed.
Trust Units Only
------------------------
Signature: In presence of:
------------------------- -------------------------
Holder Witness
Notice: The signature to this redemption notice must correspond with the name
as written upon the face of the certificate in every particular, without
alteration or enlargement, or any change whatsoever and must be guaranteed by a
major Canadian Schedule I chartered bank, a major trust company in Canada or a
member of an acceptable Medallion Signature Guarantee Program (STAMP, SEMP,
MSP). The Guarantor must affix a stamp bearing the actual words "Signature
Guaranteed".
In the USA, signature guarantees must be done by a member of a "Medallion
Signature Guarantee Program" only.
Signature guarantees are not accepted from Treasury Branches, Credit Unions or
Caisses Populaires unless they are members of the Stamp Medallion Program.