AMENDING AGREEMENT
THIS AMENDING AGREEMENT made as of the 30th day of April, 2004
BETWEEN:
ULTIMA ENERGY TRUST, a trust created under the Laws of
the Province of Alberta, (hereinafter referred to as
"Ultima")
- and -
ULTIMA VENTURES CORP., a corporation subsisting under
the Laws of the Province of Alberta, (hereinafter
referred to as "Ultima Co")
- and -
PETROFUND ENERGY TRUST, a trust created under the Laws
of the Province of Ontario, (hereinafter referred to
as "Petrofund")
- and -
PETROFUND CORP., a corporation subsisting under the
Laws of the Province of Alberta, (hereinafter referred
to as "Petrofund Co")
WHEREAS Ultima, Ultima Co, Petrofund and Petrofund Co entered into a
combination agreement (the "Combination Agreement") dated March 29, 2004;
AND WHEREAS Ultima, Ultima Co, Petrofund and Petrofund Co have agreed
to effect certain amendments to the Combination Agreement as more particularly
set out in this agreement (the "Amending Agreement");
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
covenants and agreements herein contained and other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereto do hereby covenant and agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Capitalized terms used herein, including the recitals hereto, which are
defined in the Combination Agreement, shall have the meanings ascribed
thereto in this Amending Agreement.
1.2 Any provision of this Amending Agreement which may be invalid shall be
ineffective to the extent of such invalidity only, without affecting
the validity of the remaining provisions of this Amending Agreement or
the Combination Agreement as amended
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hereby, it being the intent and purpose that the Combination
Agreement, as amended by this Amending Agreement should survive and be
valid to the maximum extent permitted by applicable law.
ARTICLE 2
AMENDMENT
2.1 The Combination Agreement shall be amended as follows:
(a) the reference to Schedule "A" in the definition of "Assumption
Agreement" shall be removed and replaced with "Schedule B-1";
(b) the reference to June 9, 2004 in the definition of "Closing Date"
shall be removed and replaced with "June 16, 2004";
(c) after the definition of "Public Record", the following definition
shall be inserted:
"Registration Statement" has the meaning ascribed thereto in
Section 2.13;"
(d) subsection (d) in the definition of "Required Regulatory
Approvals" shall be removed and replaced with the following:
"(d) the Registration Statement shall have been declared
effective by the SEC under the U.S. Securities Act
and no stop order suspending the effectiveness of the
Registration Statement shall have been issued by the
SEC and no proceeding for that purpose shall have
been initiated by the SEC;"
(e) section 2.13 shall be deleted and replaced with the following:
"The Petrofund Parties (with the cooperation of the Ultima
Parties) shall prepare and file with the SEC a registration
statement on Form F-10 (together with all amendments
thereto, the "Registration Statement"), in which the Ultima
Circular and any other documents used to solicit votes of
Ultima Unitholders at the Ultima Special Meeting shall be
included as a prospectus, in connection with the
registration under the Securities Act of the Payment Units
to be issued to the Ultima Unitholders pursuant to the
Acquisition and Redemption Transaction. The Petrofund
Parties and the Ultima Parties each shall use their
reasonable commercial efforts to cause the Registration
Statement to become effective as promptly as practicable
after the filing of the Ultima Circular with the Securities
Authorities. Until such time as the Registration Statement
has been filed, the Ultima Circular shall not be mailed to,
or otherwise used to solicit, Ultima Unitholders. Ultima
shall furnish all information concerning itself and its
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affiliates that Petrofund may reasonably request in
connection with such actions and the preparation of the
Registration Statement, including a reconciliation of any
Ultima financial statements (including pro forma financial
information of Ultima which gives effect to the purchase of
all of the issued and outstanding common shares and
preferred shares in the capital of Trioco Resources Inc.) to
be included in the Ultima Circular to U.S. generally
accepted accounting principles as required by Item 17 of
Form 20-F of the Exchange Act which shall be included within
the Ultima Circular. Petrofund will advise Ultima promptly
after it receives notice thereof, of the time when the
Registration Statement has become effective or any
supplement or amendment has been filed, of the issuance of
any stop order, or of any request by the SEC for amendment
of the Registration Statement or comments thereon and
responses thereto or requests by the SEC for additional
information. If, at any time prior to the Time of Closing,
any event or circumstance relating to the Ultima Parties, or
their respective officers or directors, should be discovered
by the Ultima Parties which should be set forth in an
amendment or a supplement to the Ultima Circular and the
Registration Statement, Ultima shall promptly inform
Petrofund. In connection with the filing of the Registration
Statement, Petrofund shall file with the SEC a written
irrevocable consent and power of attorney on Form F-X."
(f) section 3.1(a) shall be deleted and replaced with the following:
"(a) cause the Payment Units which are to be issued to
Ultima and then to be received by Ultima Unitholders
in exchange for the Ultima Units pursuant to the
Acquisition and Redemption Transaction not to be
subject to any trading restrictions under Applicable
Canadian Securities Laws or U.S. Securities Laws
(other than Control Person Restrictions and Affiliate
Restrictions) and to be listed and posted for trading
on the TSX and the AMEX (subject to notice of
issuance) by the Closing Date;"
(g) section 3.2(a) shall be deleted and replaced with the following:
"(a) cause the Payment Units which are to be issued to
Ultima and then to be received by Ultima Unitholders
in exchange for the Ultima Units pursuant to the
Acquisition and Redemption Transaction not to be
subject to any trading restrictions under Applicable
Canadian Securities Laws or U.S. Securities Laws
(other than Control Person Restrictions and
Affiliate Restrictions) and to be listed and posted
for trading on the TSX and the AMEX (subject to
notice of issuance) by the Closing Date;"
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(h) section 3.2(b) shall be deleted and replaced with the following:
"(b) until the earlier of (i) two years from the date
of the issuance of the Payment Units and (ii) the
date as of which none of the outstanding Payment
Units are subject to restrictions on their resale
pursuant to Rule 145 under the U.S. Securities Act,
make available adequate current public information
with respect to Petrofund as required by Rule 144
adopted by the SEC under the U.S. Securities Act;"
(i) section (vv) of Schedule "C" shall be deleted and replaced with
the following:
"(vv) Eligibility Requirements. Ultima meets the general
eligibility requirements for use of Form F-10
under the U.S. Securities Act."
(j) section (xx) of Schedule "C" shall be deleted and replaced with
the following:
"(xx) Information Contained in Ultima Circular. The
information in the Ultima Circular (excluding any
information therein provided by the Petrofund Parties)
and the information supplied by the Ultima Parties for
inclusion in the Registration Statement shall not at
(i) the time the Registration Statement becomes
effective, (ii) the time the Ultima Circular
(or any amendment thereof or supplement thereto) is
first mailed to the Ultima Unitholders, (iii) the time
of the Ultima Special Meeting and (iv) at the Time of
Closing contain any untrue statement of a material
fact or fail to state any material fact required to
be stated therein or necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not misleading."
(k) section (gg) of Schedule "D" shall be deleted and replaced with
the following and all subsequent sections in Schedule "D" shall be
re-ordered:
"(gg) Eligibility Requirements. Petrofund meets the general
eligibility requirements for use of Form F-10 under
the U.S. Securities Act.
(hh) Information Contained in Ultima Circular. The
information supplied by Petrofund Parties for inclusion
in the Ultima Circular or otherwise for inclusion in
the Registration Statement shall not at (i) the time
the Registration Statement becomes effective,
(ii) the time the Ultima Circular (or any amendment
thereof or supplement thereto) is first mailed to the
Ultima Unitholders, (iii) the time of the Ultima
Special Meeting and (iv) at the Time of Closing
contain any untrue statement of a material fact or
fail to
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state any material fact required to be stated therein
or necessary in order to make the statements therein,
in light of the circumstances under which they were
made, not misleading.
(ii) Compliance with U.S. Securities Act. The Registration
Statement and the Form F-X, and any amendments or
supplements thereto, shall, at the time (i) when each
became effective and (ii) at the Time of Closing,
comply in all material respects, with the requirements
of the U.S. Securities Act; provided, however, that,
except as otherwise provided herein, the Petrofund
Parties make no representation as to the compliance
with applicable Law of information included in the
Registration Statement with respect to, or provided by,
the Ultima Parties, including the information
contained in the Ultima Circular."
ARTICLE 3
WAIVER
3.1 The Petrofund Parties hereby waive the inaccuracies in the
representations and warranties of the Ultima Parties contained in
sections (vv) and (xx) of Schedule "C" of the Combination Agreement and
acknowledge that such inaccuracies have been rectified by this Amending
Agreement.
ARTICLE 4
MISCELLANEOUS
4.1 This Amending Agreement together with the provisions of the Combination
Agreement constitute the entire agreement between the Parties, and for
greater certainty, other than as specifically provided in this Amending
Agreement, the provisions of the Combination Agreement remain in full
force and effect and unamended.
4.2 Notwithstanding the date of execution hereof, the effective date of
this amendment to the Combination Agreement and exhibits thereto shall
be March 29, 2004 and all references to the Combination Agreement and
exhibits thereto dated March 29, 2004 shall be deemed to include this
document.
4.3 This Amending Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
4.4 The Parties hereto acknowledge that, with respect to Ultima being a
party to this Agreement, Ultima Co is entering into this Amending
Agreement solely in its capacity as agent on behalf of Ultima and the
obligations of Ultima hereunder shall not be personally binding upon
the Ultima Trustee, Ultima Co or any of the Ultima Unitholders or any
annuitant under a plan of which a unitholder is a trustee or carrier
(an "annuitant") and
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that any recourse against Ultima, Ultima Trustee, Ultima Co or any
unitholder or annuitant in any manner in respect of any indebtedness,
obligation or liability of Ultima arising hereunder or arising in
connection herewith or from the matters to which this Amending
Agreement relates, if any, including without limitation claims based on
negligence, tortious behaviour or otherwise, shall be limited to, and
satisfied only out of, the Trust Fund as defined in the Ultima Trust
Indenture.
4.5 The obligations or liabilities, if any, of the Petrofund Trustee or
Petrofund hereunder shall not be binding upon, nor shall resort be had
to the property of, any of the unitholders or annuitants of Petrofund
and such obligations and liabilities shall not be binding upon such
unitholders or annuitants. The obligations or liabilities, if any, of
the Petrofund Trustee or Petrofund hereunder shall be satisfied only
out of the property of Petrofund and no resort may be had to the
property of any trustee, manager, officer or employee of Petrofund or
any director, officer or employee of any manager or trustee of
Petrofund. The obligations and liabilities hereunder, if any, of any
trustee, manager, officer or employee of Petrofund or any director,
officer or employee of any manager or trustee of Petrofund shall bind
such obligor only to the extent that such obligor is entitled to be
indemnified by Petrofund. The provisions of this paragraph shall enure
to the benefit of the heirs, successors, assigns and personal
representatives of the trustee, manager, officer or employee of
Petrofund, of any director, officer or employee of any manager or
trustee of Petrofund, of the unitholders and annuitants of Petrofund
and, to the extent necessary to provide effective enforcement of such
provisions, the Petrofund Trustee is hereby acknowledged to be acting,
and shall be entitled to act as, trustee for the unitholders and
annuitants of Petrofund.
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IN WITNESS WHEREOF, the parties hereto have executed this Amending Agreement the
30th day of April, 2004.
ULTIMA ENERGY TRUST, by Ultima PETROFUND ENERGY TRUST, by
Ventures Corp. Petrofund Corp.
Per: Per:
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Name: Name:
Title: Title:
Per: Per:
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Name: Name:
Title: Title:
ULTIMA VENTURES CORP. PETROFUND CORP.
Per: Per:
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Name: Name:
Title: Title:
Per: Per:
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Name: Name:
Title: Title: