EXHIBIT 99.86
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ADVANTAGE ENERGY INCOME FUND
- AND -
SCOTIA CAPITAL INC., ON ITS OWN BEHALF AND ON BEHALF OF BMO NESBITT
BURNS INC., NATIONAL BANK FINANCIAL INC., RBC DOMINION SECURITIES INC.,
CIBC WORLD MARKETS INC., FIRSTENERGY CAPITAL CORP., AND RAYMOND JAMES LTD.
- AND -
COMPUTERSHARE TRUST COMPANY OF CANADA
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SUBSCRIPTION RECEIPT AGREEMENT
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PROVIDING FOR THE ISSUE OF
SUBSCRIPTION RECEIPTS
DATED SEPTEMBER 14, 2004
TABLE OF CONTENTS
PAGE
ARTICLE 1 INTERPRETATION......................................................2
1.1 DEFINITIONS.....................................................2
1.2 HEADINGS........................................................5
1.3 REFERENCES......................................................5
1.4 CERTAIN RULES OF INTERPRETATION.................................5
1.5 DAY NOT A BUSINESS DAY..........................................6
1.6 APPLICABLE LAW..................................................6
1.7 CONFLICT........................................................6
1.8 CURRENCY........................................................6
1.9 SEVERABILITY....................................................6
ARTICLE 2 ISSUE OF SUBSCRIPTION RECEIPTS......................................6
2.1 PAYMENT ACKNOWLEDGEMENT.........................................6
2.2 TERMS AND ISSUE OF SUBSCRIPTION RECEIPTS........................7
2.3 FRACTIONAL SUBSCRIPTION RECEIPTS................................7
2.4 REGISTER FOR SUBSCRIPTION RECEIPTS..............................7
2.5 REGISTERS OPEN FOR INSPECTION...................................7
2.6 RECEIPTHOLDER NOT A UNITHOLDER..................................7
2.7 SUBSCRIPTION RECEIPTS TO RANK PARI PASSU........................8
2.8 SIGNING OF SUBSCRIPTION RECEIPT CERTIFICATES....................8
2.9 CERTIFICATION BY THE ESCROW AGENT...............................8
2.10 ISSUE IN SUBSTITUTION FOR SUBSCRIPTION RECEIPT
CERTIFICATES LOST, ETC.......................................8
2.11 EXCHANGE OF SUBSCRIPTION RECEIPT CERTIFICATES...................9
2.12 CHARGES FOR EXCHANGE............................................9
2.13 TRANSFER AND OWNERSHIP OF SUBSCRIPTION RECEIPTS.................9
2.14 GLOBAL SUBSCRIPTION RECEIPT....................................10
2.15 NO REGISTRATION IN THE UNITED STATES...........................11
2.16 LISTING OF SUBSCRIPTION RECEIPTS...............................11
2.17 RIGHT OF RESCISSION............................................11
ARTICLE 3 SATISFACTION OF ISSUANCE RIGHT OR TERMINATION PAYMENT RIGHT........12
3.1 NOTICE OF ACQUISITION..........................................12
3.2 RELEASE OF FUNDS ON ACQUISITION DATE OR FOR DEPOSIT INTO
ESCROW ARRANGEMENT TO CLOSE ACQUISITION.....................12
3.3 ISSUE OF UNITS AND PAYMENT THEREON.............................13
3.4 PAYMENT ON TERMINATION.........................................13
3.5 CANCELLATION OF SURRENDERED SUBSCRIPTION RECEIPT
CERTIFICATES................................................14
3.6 ADDITIONAL PAYMENTS BY THE TRUST...............................14
3.7 PAYMENT OF UNDERWRITING FEE....................................15
ARTICLE 4 INVESTMENT OF PROCEEDS AND PAYMENT OF INTEREST.....................15
4.1 INVESTMENT OF PROCEEDS.........................................15
4.2 SEGREGATION OF PROCEEDS........................................15
ARTICLE 5 RIGHTS OF THE TRUST AND COVENANTS..................................15
5.1 OPTIONAL PURCHASES BY THE TRUST................................15
5.2 GENERAL COVENANTS..............................................15
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5.3 ESCROW AGENT'S REMUNERATION, EXPENSES AND INDEMNIFICATION......16
5.4 PERFORMANCE OF COVENANTS BY ESCROW AGENT.......................17
5.5 ACCOUNTING.....................................................17
5.6 PAYMENTS BY ESCROW AGENT.......................................17
5.7 REGULATORY MATTERS.............................................17
ARTICLE 6 ENFORCEMENT........................................................18
6.1 SUITS BY RECEIPTHOLDERS........................................18
6.2 IMMUNITY OF UNITHOLDERS, ETC...................................18
6.3 LIMITATION OF LIABILITY........................................18
ARTICLE 7 MEETINGS OF RECEIPTHOLDERS.........................................18
7.1 RIGHT TO CONVENE MEETINGS......................................18
7.2 NOTICE.........................................................18
7.3 CHAIRMAN.......................................................19
7.4 QUORUM.........................................................19
7.5 POWER TO ADJOURN...............................................19
7.6 SHOW OF HANDS..................................................19
7.7 POLL AND VOTING................................................19
7.8 REGULATIONS....................................................20
7.9 TRUST AND ESCROW AGENT MAY BE REPRESENTED......................20
7.10 POWERS EXERCISABLE BY EXTRAORDINARY RESOLUTION.................21
7.11 MEANING OF EXTRAORDINARY RESOLUTION............................22
7.12 POWERS CUMULATIVE..............................................22
7.13 MINUTES........................................................23
7.14 INSTRUMENTS IN WRITING.........................................23
7.15 BINDING EFFECT OF RESOLUTIONS..................................23
7.16 HOLDINGS BY TRUST DISREGARDED..................................23
ARTICLE 8 SUPPLEMENTAL AGREEMENTS............................................23
8.1 PROVISION FOR SUPPLEMENTAL AGREEMENTS FOR CERTAIN PURPOSES.....23
ARTICLE 9 CONCERNING THE ESCROW AGENT........................................24
9.1 RIGHTS AND DUTIES OF ESCROW AGENT..............................24
9.2 EVIDENCE, EXPERTS AND ADVISERS.................................25
9.3 DOCUMENTS, MONIES, ETC. HELD BY ESCROW AGENT...................26
9.4 ACTIONS BY ESCROW AGENT TO PROTECT INTEREST....................26
9.5 ESCROW AGENT NOT REQUIRED TO GIVE SECURITY.....................26
9.6 PROTECTION OF ESCROW AGENT.....................................26
9.7 REPLACEMENT OF ESCROW AGENT; SUCCESSOR BY MERGER...............27
9.8 CONFLICT OF INTEREST...........................................27
9.9 ACCEPTANCE OF APPOINTMENT......................................28
9.10 ESCROW AGENT NOT TO BE APPOINTED RECEIVER......................28
ARTICLE 10 GENERAL...........................................................28
10.1 NOTICE TO THE TRUST, ESCROW AGENT AND THE LEAD UNDERWRITER.....28
10.2 NOTICE TO RECEIPTHOLDERS.......................................29
10.3 OWNERSHIP AND TRANSFER OF SUBSCRIPTION RECEIPTS................29
10.4 EVIDENCE OF OWNERSHIP..........................................30
10.5 SATISFACTION AND DISCHARGE OF AGREEMENT........................30
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10.6 PROVISIONS OF AGREEMENT AND SUBSCRIPTION RECEIPTS FOR THE
SOLE BENEFIT OF PARTIES AND RECEIPTHOLDERS..................30
10.7 SUBSCRIPTION RECEIPTS OWNED BY THE TRUST OR ITS
SUBSIDIARIES - CERTIFICATE TO BE PROVIDED...................30
10.8 EFFECT OF EXECUTION............................................31
10.9 CONTRACTUAL OBLIGATIONS OF THE TRUST...........................31
10.10 TIME OF ESSENCE................................................31
10.11 COUNTERPARTS...................................................32
SUBSCRIPTION RECEIPT AGREEMENT
THIS SUBSCRIPTION RECEIPT AGREEMENT made as of the 14th day of
September, 2004.
AMONG:
ADVANTAGE ENERGY INCOME FUND, an unincorporated trust formed
under the laws of Alberta (hereinafter referred to as the
"TRUST")
AND
SCOTIA CAPITAL INC., (hereinafter referred to as the "LEAD
UNDERWRITER"), on behalf of the underwriters who are party to
the Underwriting Agreement providing for the issue and sale to
investors of the Subscription Receipts
AND
COMPUTERSHARE TRUST COMPANY OF CANADA, a trust company
authorized to carry on business in all Provinces of Canada
(hereinafter referred to as the "ESCROW AGENT")
WHEREAS the Trust is proposing to issue and sell Subscription
Receipts, each Subscription Receipt representing the right to receive one Unit;
AND WHEREAS the Trust and the Lead Underwriter, on behalf of
the Underwriters, have agreed that:
(a) the Proceeds are to be delivered to and held by the Escrow Agent and
invested on behalf of the holders of Subscription Receipts and the
Trust in the manner set forth herein;
(b) if the Acquisition Time occurs by the Deadline, each holder of
Subscription Receipts shall be entitled to receive, without additional
consideration or further action, one Unit for each Subscription Receipt
held together with the holder's Acquisition Payment; and
(c) if the Acquisition Time does not occur by the Deadline, the Acquisition
is terminated at any earlier time or the Trust has advised the
Underwriters or announced to the public that it does not intend to
proceed with the Acquisition, the subscription for Units represented by
each Subscription Receipt shall be automatically terminated and
cancelled and each holder of Subscription Receipts shall be entitled to
receive from the Trust an amount equal to the Subscription Price in
respect of each Subscription Receipt held together with such holder's
PRO RATA share of Earned Interest;
AND WHEREAS all things necessary have been done and performed
to make the Subscription Receipts, when certified by the Escrow Agent and issued
as provided in this Agreement, legal, valid and binding obligations of the Trust
with the benefits and subject to the terms of this Agreement;
AND WHEREAS the foregoing recitals are by the Trust and the
Lead Underwriter, on behalf of the Underwriters, as the context provides, and
not by the Escrow Agent;
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NOW THEREFORE THIS AGREEMENT WITNESSES that for good and
valuable consideration mutually given and received, the receipt and sufficiency
of which is hereby acknowledged, it is hereby agreed and declared as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
In this Agreement and the recitals, unless there is something
in the subject matter or context inconsistent therewith or unless otherwise
expressly provided, the following terms shall have the respective meanings set
out below and grammatical variations of such terms shall have corresponding
meanings:
(a) "1933 ACT" means the United States SECURITIES ACT OF 1933, as amended;
(b) "ABCA" means the BUSINESS CORPORATIONS ACT (Alberta), R.S.A. 2000,
c.B-9, as amended, including the regulations promulgated thereunder;
(c) "ACQUISITION" means the acquisition by AOG of the Assets, pursuant to
and in all material respects as contemplated in the Acquisition
Agreement and without material amendment or waiver adverse to the Trust
considered as a whole;
(d) "ACQUISITION AGREEMENT" means the Agreement of Purchase and Sale dated
August 24, 2004 between Anadarko and AOG pursuant to which Anadarko
agreed to sell and AOG agreed to purchase the Assets;
(e) "ACQUISITION DATE" means the date upon which the closing of the
Acquisition takes place, and "ACQUISITION TIME" means the time on the
Acquisition Date at which the closing of the Acquisition takes place;
(f) "ACQUISITION NOTICE" means a notice substantially in the form set forth
in SCHEDULE "C" hereto, executed by the Trust, certifying that the
Acquisition Time has occurred prior to the Deadline;
(g) "ACQUISITION PAYMENT" means an amount per Subscription Receipt equal to
the amount per Unit of any cash distributions for which record dates
have occurred during the period from and including the date hereof to
but excluding the date the Units are issued or deemed to be issued
hereunder pursuant to the Subscription Receipts;
(h) "AGREEMENT" means this agreement, as amended, supplemented or otherwise
modified from time to time in accordance with the provisions hereof;
(i) "AIM" means Advantage Investment Management Ltd., a corporation
incorporated under the ABCA;
(j) "ANADARKO" means Anadarko Canada Corporation, the managing partner of
Anadarko Canada Resources;
(k) "AOG" means Advantage Oil & Gas Ltd., a corporation incorporated under
the ABCA and a wholly-owned subsidiary of the Trust;
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(l) "ASSETS" means those petroleum and natural gas properties and related
assets that AOG expects to acquire from Anadarko pursuant to the
Acquisition Agreement;
(m) "BENEFICIAL HOLDER" means any person who holds a beneficial interest in
a Subscription Receipt;
(n) "BOOK-ENTRY ONLY SYSTEM" means the book-based securities transfer
system administered by CDS in accordance with its operating rules and
procedures in force from time to time;
(o) "BUSINESS DAY" means a day which is not Saturday or Sunday or a
statutory holiday in Calgary, Alberta or Toronto, Ontario;
(p) "CDS" means The Canadian Depositary for Securities Limited and its
successors in interest;
(q) "COUNSEL" means a barrister or solicitor or a firm of barristers or
solicitors, who may be counsel for the Trust, acceptable to the Escrow
Agent, acting reasonably;
(r) "CURRENT MARKET PRICE" for any date means the weighted average price
per unit for Units for 20 consecutive trading days ending on the fifth
trading day preceding the date of determination on the Toronto Stock
Exchange (or, if the Units are not listed thereon, on such stock
exchange on which the Units are listed as may be selected for such
purpose by AOG or, if the Units are not listed on any stock exchange,
then on the over-the-counter market). The weighted average price shall
be determined by dividing the aggregate sale price of all Units sold on
the said exchange or market, as the case may be, during the said 20
consecutive trading days by the total number of Units so sold;
(s) "DEADLINE" means 5:00 p.m. (Calgary time) November 1, 2004;
(t) "DESIGNATED OFFICES" means the principal stock transfer offices of the
Escrow Agent from time to time in the cities of Calgary and Toronto;
(u) "EARNED INTEREST" means the interest or other income actually earned on
the investment of the Escrowed Funds between the date hereof and the
earlier to occur of the Acquisition Date and the Termination Date;
(v) "ESCROW AGENT" means Computershare Trust Company of Canada or its
successors from time to time under this Agreement;
(w) "ESCROWED FUNDS" means the Proceeds, all interest or other income
earned and any investments acquired from time to time with such funds;
(x) "ESCROW RELEASE CONDITION" means that the parties to the Acquisition
are able to complete the Acquisition in all material respects in
accordance with the terms of the Acquisition Agreement without material
amendment or waiver adverse to the Trust, considered as a whole but for
payment of the purchase price to be satisfied in part by the release of
the Released Amount to or to the order of Burnet, Duckworth & Palmer
LLP on behalf of the Trust or Anadarko pursuant to the terms hereof;
(y) "GLOBAL SUBSCRIPTION RECEIPT" means a Subscription Receipt Certificate
that is issued to and registered in the name of CDS or its nominee
pursuant to Section 2.14 hereof;
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(z) "IRREVOCABLE TRANSFER AGENT DIRECTION" means the written irrevocable
direction executed by the Trust, to be delivered to the Escrow Agent
pursuant to Section 3.1 hereof, substantially in the form set forth in
SCHEDULE "B" hereto;
(aa) "ISSUE DATE" means the date upon which the Acquisition Notice and press
release contemplated by Section 3.1 have been delivered or issued, as
the case may be;
(bb) "ISSUE TIME" means the Acquisition Time;
(cc) "LEAD UNDERWRITER" means Scotia Capital Inc.;
(dd) "PERSON" includes an individual, corporation, company, partnership,
joint venture, association, trust, trustee, unincorporated organization
or government or any agency or political subdivision thereof;
(ee) "TRUST INDENTURE" means the trust indenture between Computershare Trust
Company of Canada and AOG made as of April 17, 2001, supplemented as of
May 22, 2002 and amended and restated as of June 25, 2002, May 28, 2003
and May 26, 2004;
(ff) "PROCEEDS" means the amount of $18.80, being an amount equal to the
Subscription Price for each Subscription Receipt issued, being an
aggregate of $65,800,000;
(gg) "PROSPECTUS" means the English and French language versions (unless the
context indicates otherwise) of the (final) short form prospectus of
the Trust dated September 3, 2004 relating to, INTER ALIA, the
distribution of the Subscription Receipts and $50,000,000 aggregate
principal amount of 7.75% extendible convertible unsecured subordinated
debentures of the Trust, $75,000,000 aggregate principal amount of
7.50% extendible convertible unsecured subordinated debentures of the
Trust in all of the provinces of Canada and, unless the context
otherwise requires, includes all documents incorporated therein by
reference and any amendments thereto;
(hh) "RECEIPTHOLDERS", or "HOLDERS" means the registered holders from time
to time of Subscription Receipts;
(ii) "RECEIPTHOLDERS' REQUEST" means an instrument signed in one or more
counterparts by Receiptholders entitled to acquire in the aggregate not
less than 25% of the then outstanding Subscription Receipts, requesting
the Escrow Agent to take some action or proceeding specified therein;
(jj) "RELEASED AMOUNT" has the meaning ascribed thereto in Section 3.2(a);
(kk) "SUBSCRIPTION PRICE" means the sum of $18.80 per Subscription Receipt;
(ll) "SUBSCRIPTION RECEIPT CERTIFICATE" means a certificate evidencing
Subscription Receipts in the form attached as SCHEDULE "A" hereto;
(mm) "SUBSCRIPTION RECEIPTS" means the subscription receipts issued and
certified hereunder and from time to time outstanding, each
Subscription Receipt evidencing the rights set out in Subsection
2.2(a);
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(nn) "TERMINATION DATE" means the earliest of: (i) the Deadline; (ii) the
date upon which the Trust delivers to the Lead Underwriter, on behalf
of the Underwriters, and the Escrow Agent, a notice executed by the
Trust that the Acquisition has been terminated or that the Trust does
not intend to proceed with the Acquisition, and (iii) the date upon
which the Trust announces to the public that it does not intend to
proceed with the Acquisition;
(oo) "TERMINATION PAYMENT TIME" means 5:00 p.m. (Calgary time) on the second
Business Day after the Termination Date;
(pp) "TRUST" means Advantage Energy Income Fund;
(qq) "UNDERWRITERS" means, Scotia Capital Inc., BMO Nesbitt Burns Inc.,
National Bank Financial Inc., RBC Dominion Securities Inc., CIBC World
Markets Inc., FirstEnergy Capital Corp. and Raymond James Ltd.;
(rr) "UNDERWRITING FEE" has the meaning assigned to it in the Underwriting
Agreement;
(ss) "UNDERWRITING AGREEMENT" means the agreement dated as of August 24,
2004 among the Trust, AOG, AIM and the Underwriters in respect of,
among other things, the offering of Subscription Receipts by the Trust;
(tt) "UNITS" means Trust units of the Trust;
(uu) "UNITHOLDERS" means the registered holders from time to time of Units;
(vv) "WRITTEN REQUEST OF THE TRUST" and "CERTIFICATE OF THE TRUST" mean,
respectively, a written request and certificate signed in the name of
the Trust by AOG in its capacity as administrator of the Trust and may
consist of one or more instruments so executed.
1.2 HEADINGS
The headings, the table of contents and the division of this
Agreement into Articles and Sections are for convenience of reference only and
shall not affect the interpretation of this Agreement.
1.3 REFERENCES
Unless otherwise specified in this Agreement:
(a) references to Articles, Sections, and Schedules are to Articles,
Sections, and Schedules in this Agreement; and
(b) "HERETO", "HEREIN", "HEREBY", "HEREUNDER", "HEREOF " and similar
expressions, without reference to a particular provision, refer to this
Agreement.
1.4 CERTAIN RULES OF INTERPRETATION
Unless otherwise specified in this Agreement:
(a) the singular includes the plural and VICE VERSA; and
(b) references to any gender shall include references to all genders.
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1.5 DAY NOT A BUSINESS DAY
In the event that any day on or before which any action is
required to be taken hereunder is not a Business Day, then such action shall be
required to be taken at or before the requisite time on the next succeeding day
that is a Business Day.
1.6 APPLICABLE LAW
This Agreement and the Subscription Receipts shall be governed
by and construed in accordance with the laws of the Province of Alberta and the
laws of Canada applicable therein.
1.7 CONFLICT
In the event of a conflict or inconsistency between a
provision in the body of this Agreement and in any Subscription Receipt
Certificate issued hereunder, the provision in the body of this Agreement shall
prevail to the extent of the inconsistency.
1.8 CURRENCY
All dollars amounts expressed in this Agreement and in the
Subscription Receipts are in lawful money of Canada and all payments required to
be made hereunder or thereunder shall be made in Canadian dollars.
1.9 SEVERABILITY
Each of the provisions in this Agreement is distinct and
severable and a declaration of invalidity or unenforceability of any such
provision or part thereof by a court of competent jurisdiction shall not affect
the validity or enforceability of any of the other provisions hereof.
ARTICLE 2
ISSUE OF SUBSCRIPTION RECEIPTS
2.1 PAYMENT ACKNOWLEDGEMENT
(a) The Escrow Agent hereby acknowledges receipt from the Lead Underwriter
of a wire transfer of funds in the aggregate amount of $65,800,000 and
confirms that such funds have been deposited in a segregated account in
the name of the Trust designated as the "Advantage Energy Income Fund -
Sub. Receipts", or as otherwise directed by the Trust, and the Escrow
Agent will retain such amount in accordance with the terms of this
Agreement pending release of such amount in accordance with the terms
of this Agreement.
(b) The Trust hereby:
(i) acknowledges that the amount received by the Escrow Agent
pursuant to Section 2.1(a), represents payment in full by the
Underwriters of the Subscription Price for 3,500,000
Subscription Receipts; and
(ii) irrevocably directs the Escrow Agent to retain such amount in
accordance with the terms of this Agreement pending release of
such amount in accordance with the terms of this Agreement.
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2.2 TERMS AND ISSUE OF SUBSCRIPTION RECEIPTS
(a) Each Subscription Receipt shall evidence the right of the holder: (i)
if the Acquisition Time occurs by the Deadline, to receive, for no
additional consideration, one Unit plus such holder's Acquisition
Payment less applicable withholding taxes; or (ii) if the Acquisition
Time does not occur by the Deadline, the Acquisition is terminated at
any earlier time or the Trust has advised the Underwriters or announced
to the public that it does not intend to proceed with the Acquisition,
to receive an amount equal to the sum of the Subscription Price and
such holder's PRO RATA share of the Earned Interest, less applicable
withholding taxes, all in the manner and on the terms and conditions
set out in this Agreement.
(b) A maximum of 3,500,000 Subscription Receipts are hereby created and
authorized to be issued.
(c) The Subscription Receipt Certificates (including all replacements
issued in accordance with this Agreement) shall be substantially in the
form attached hereto as SCHEDULE "A", shall bear such distinguishing
letters and numbers as the Trust may, with the approval of the Escrow
Agent and CDS, prescribe, and shall be issuable in any whole number
denominations.
(d) The Escrow Agent is hereby directed, immediately following the
execution and delivery of this Agreement, to execute, issue and deliver
to the Lead Underwriter, on behalf of the Underwriters, one or more
definitive Subscription Receipt Certificates in the form of a Global
Subscription Receipt representing 3,500,000 Subscription Receipts
registered in the name of CDS (or its nominee).
2.3 FRACTIONAL SUBSCRIPTION RECEIPTS
No fractional Subscription Receipts shall be issued or
otherwise provided for hereunder.
2.4 REGISTER FOR SUBSCRIPTION RECEIPTS
The Trust hereby appoints the Escrow Agent as registrar of the
Subscription Receipts, and the Trust shall cause to be kept by the Escrow Agent
at the Designated Offices, a securities register in which shall be entered the
names and addresses of holders of Subscription Receipts and the other
particulars, prescribed by law, of the Subscription Receipts held by them. The
Trust shall also cause to be kept by the Escrow Agent at the Designated Offices
the register of transfers, and may also cause to be kept by the Escrow Agent,
branch registers of transfers in which shall be recorded the particulars of the
transfers of Subscription Receipts registered in that branch register of
transfers.
2.5 REGISTERS OPEN FOR INSPECTION
The registers hereinbefore referred to shall be open at all
reasonable times during regular business hours of the Escrow Agent on a Business
Day for inspection by the Trust, the Escrow Agent or any Receiptholder. The
Escrow Agent shall, from time to time when requested so to do by the Trust,
furnish the Trust with a list of the names and addresses of Receiptholders
entered in the registers kept by the Escrow Agent and showing the number of
Subscription Receipts held by each such holder.
2.6 RECEIPTHOLDER NOT A UNITHOLDER
Nothing in this Agreement or in the holding of a Subscription
Receipt evidenced by a Subscription Receipt Certificate or otherwise, shall
confer or be construed as conferring upon a Receiptholder any right or interest
whatsoever as a Unitholder, including, but not limited to, the right to
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vote at, to receive notice of, or to attend meetings of Unitholders, or the
right to receive distributions or any continuous disclosure materials of the
Trust. Receiptholders are entitled to exercise the rights expressly provided for
in the Subscription Receipts and this Agreement on the terms and conditions set
forth herein.
2.7 SUBSCRIPTION RECEIPTS TO RANK PARI PASSU
All Subscription Receipts shall rank PARI PASSU, whatever may
be the actual date of issue of same.
2.8 SIGNING OF SUBSCRIPTION RECEIPT CERTIFICATES
The Subscription Receipt Certificates shall be signed by an
officer of AOG, on behalf of the Trust. The signature of such officer may be
mechanically reproduced in facsimile and Subscription Receipt Certificates
bearing such facsimile signature shall, subject to Section 2.9, be binding upon
the Trust as if they had been manually signed by such officer. Notwithstanding
that the person whose manual or facsimile signature appears on any Subscription
Receipt Certificate as such officer may no longer hold such position at the date
of such Subscription Receipt Certificate or at the date of certification or
delivery thereof, any Subscription Receipt Certificate signed as aforesaid
shall, subject to Section 2.9, be valid and binding upon the Trust and the
holder thereof shall be entitled to the benefits of this Agreement.
2.9 CERTIFICATION BY THE ESCROW AGENT
(a) No Subscription Receipt Certificate shall be issued or, if issued,
shall be valid for any purpose or entitle the holder to the benefit
hereof until it has been certified by manual signature by or on behalf
of the Escrow Agent, and such certification by the Escrow Agent upon
any Subscription Receipt Certificate shall be conclusive evidence as
against the Trust that the Subscription Receipt Certificate so
certified has been duly issued hereunder and that the holder is
entitled to the benefits hereof.
(b) The certification of the Escrow Agent on Subscription Receipt
Certificates issued hereunder shall not be construed as a
representation or warranty by the Escrow Agent as to the validity of
this Agreement or the Subscription Receipt Certificates (except the due
certification thereof) and the Escrow Agent shall in no respect be
liable or answerable for the use made of the Subscription Receipt
Certificates or any of them or of the consideration therefor except as
otherwise specified herein. The certificate by or on behalf of the
Escrow Agent on Subscription Receipt Certificates shall constitute a
representation and warranty by the Escrow Agent that such Subscription
Receipt Certificates have been duly certified by or on behalf of the
Escrow Agent pursuant to the provisions of this Agreement.
2.10 ISSUE IN SUBSTITUTION FOR SUBSCRIPTION RECEIPT CERTIFICATES
LOST, ETC.
(a) In case any Subscription Receipt Certificate shall become mutilated or
be lost, destroyed or stolen, the Trust, subject to applicable law and
compliance with paragraph (b) below, shall issue and thereupon the
Escrow Agent shall certify and deliver, a new Subscription Receipt
Certificate of like tenor as the one mutilated, lost, destroyed or
stolen in exchange for and in place of and upon cancellation of such
mutilated Subscription Receipt Certificate, or in lieu of and in
substitution for such lost, destroyed or stolen Subscription Receipt
Certificate, and the substituted Subscription Receipt Certificate shall
be in a form approved by the Escrow Agent and shall be entitled to the
benefits hereof and shall rank equally in accordance with its terms
with all other Subscription Receipt Certificates issued or to be issued
hereunder.
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(b) The applicant for the issue of a new Subscription Receipt Certificate
pursuant to this Section 2.10 shall bear the cost of the issue thereof
and in case of loss, destruction or theft shall, as a condition
precedent to the issue thereof, furnish to the Trust and to the Escrow
Agent such evidence of ownership and of the loss, destruction or theft
of the Subscription Receipt Certificate so lost, destroyed or stolen as
shall be satisfactory to the Trust and to the Escrow Agent in their
sole discretion, and such applicant may also be required to furnish an
indemnity or security in amount and form satisfactory to the Trust and
the Escrow Agent in their sole discretion and shall pay the reasonable
charges of the Trust and the Escrow Agent in connection therewith.
2.11 EXCHANGE OF SUBSCRIPTION RECEIPT CERTIFICATES
(a) Subscription Receipt Certificates may, upon compliance with the
reasonable requirements of the Escrow Agent, be exchanged for another
Subscription Receipt Certificate or Subscription Receipt Certificates
entitling the holder thereof to, in the aggregate, the same number of
Subscription Receipts as represented by the Subscription Receipt
Certificates so exchanged.
(b) Subscription Receipt Certificates may be surrendered for exchange only
at the Designated Offices during regular business hours of the Escrow
Agent.
2.12 CHARGES FOR EXCHANGE
Except as otherwise herein provided, the Escrow Agent may
charge to the holder requesting an exchange a reasonable sum for each new
Subscription Receipt Certificate issued in exchange for Subscription Receipt
Certificate(s). Payment of such charges and reimbursement of the Escrow Agent or
the Trust for any and all stamp taxes or governmental or other charges required
to be paid shall be made by such holder as a condition precedent to such
exchange.
2.13 TRANSFER AND OWNERSHIP OF SUBSCRIPTION RECEIPTS
(a) Subject to Sections 2.13(d) and 2.15, there are no restrictions on the
transfer of the Subscription Receipts. However, the Subscription
Receipts may only be transferred on the register kept at one of the
Designated Offices by the holder or his legal representatives or his
attorney duly appointed by an instrument in writing. Upon surrender for
registration of transfer of Subscription Receipts at one of the
Designated Offices and upon compliance with Section 2.15, the Trust
shall issue and thereupon the Escrow Agent shall certify and deliver a
new Subscription Receipt Certificate of like tenor in the name of the
designated transferee. If less than all the Subscription Receipts
evidenced by the Subscription Receipt Certificate(s) so surrendered are
transferred, the transferor shall be entitled to receive, in the same
manner, a new Subscription Receipt Certificate registered in his name
evidencing the Subscription Receipts not transferred. However,
notwithstanding the foregoing, Subscription Receipts shall only be
transferred upon:
(i) payment to the Escrow Agent of a reasonable sum for each new
Subscription Receipt Certificate issued upon such transfer,
and reimbursement of the Escrow Agent or the Trust for any and
all stamp taxes or governmental or other charges required to
be paid in respect of such transfer; and
(ii) such reasonable requirements as the Escrow Agent may
prescribe,
and all such transfers shall be duly noted in such register by the
Escrow Agent.
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(b) The Trust and the Escrow Agent shall deem and treat the registered
owner of any Subscription Receipt as the beneficial owner thereof for
all purposes and neither the Trust nor the Escrow Agent shall be
affected by any notice to the contrary.
(c) The transfer register in respect of Subscription Receipts shall be
closed at 4:30 p.m. (Calgary time) at the Designated Office, on the
earlier to occur of the Acquisition Date and the Termination Date
(subject to settlement).
(d) The Escrow Agent shall promptly advise the Trust of any requested
transfer of Subscription Receipts. The Trust shall be entitled, and may
direct the Escrow Agent, to refuse to recognize any transfer, or enter
the name of any transferee, of any Subscription Receipts on the
registers referred to in this Article, if such transfer would
constitute a violation of the securities laws of any jurisdiction or
the rules, regulations or policies of any regulatory authority having
jurisdiction.
(e) Subject to the provisions of this Agreement and applicable law, a
Receiptholder shall be entitled to the rights and privileges attaching
to the Subscription Receipts. Either the issue and delivery of Units
and the applicable Acquisition Payment, less applicable withholding
taxes, as provided in Section 3.3, or the payment of the Subscription
Price and the Earned Interest, less applicable withholding taxes, as
provided in Section 3.4, all in accordance with the terms and
conditions herein contained, shall discharge all responsibilities of
the Trust and the Escrow Agent with respect to such Subscription
Receipts and neither the Trust nor the Escrow Agent shall be bound to
inquire into the title of a Receiptholder or a transferee of
Subscription Receipts who surrenders a Subscription Receipt
Certificate.
2.14 GLOBAL SUBSCRIPTION RECEIPT
(a) Unless the Book-Entry Only System is terminated, Subscription Receipt
Certificates will only be issued in the form of a Global Subscription
Receipt certificate, which will be registered in the name of and
deposited with CDS or its nominee.
(b) Unless the Book-Entry Only System is terminated or required to be
terminated by applicable law, owners of the beneficial interests in the
Subscription Receipts shall not be entitled to have Subscription
Receipts registered in their names, shall not receive or be entitled to
receive Subscription Receipt Certificates in definitive form and shall
not be considered owners or holders thereof under this Agreement or any
supplemental agreement except in circumstances where CDS resigns or is
removed from its responsibility and the Escrow Agent is unable or does
not wish to locate a qualified successor. Beneficial interests in the
Global Subscription Receipt will be represented only through the
Book-Entry Only System. Transfers of Subscription Receipts between CDS
participants shall occur in accordance with CDS' rules and procedures.
The Trust shall not have any responsibility or liability for any
aspects of the records relating to or payments made by CDS, or its
nominee, on account of the beneficial interests in the Subscription
Receipts. Nothing herein shall prevent the owners of beneficial
interests in the Subscription Receipts from voting such Subscription
Receipts using duly executed proxies.
(c) All references herein to actions by, notices given or payments made to
Receiptholders shall, where Subscription Receipts are held through CDS,
refer to actions taken by, or notices given or payments made to, CDS
upon instruction from the CDS participants in accordance with its rules
and procedures. For the purposes of any provision hereof requiring or
permitting actions with the consent of or at the direction of
Receiptholders evidencing a specified percentage of the aggregate
Subscription Receipts outstanding, such direction or consent may be
given by holders of Subscription Receipts acting through CDS and the
CDS participants owning Subscription
11
Receipts evidencing the requisite percentage of the Subscription
Receipts. The rights of a Receiptholder whose Subscription Receipts are
held through CDS shall be exercised only through CDS and the CDS
participants and shall be limited to those established by law and
agreements between such holders and CDS and the CDS participants upon
instructions from the CDS participants. Each of the Escrow Agent and
the Trust may deal with CDS for all purposes (including the making of
payments) as the authorized representative of the respective
Receiptholders and such dealing with CDS shall constitute satisfaction
or performance, as applicable, of their respective obligations
hereunder.
(d) For so long as Subscription Receipts are held through CDS, if any
notice or other communication is required to be given to
Receiptholders, the Escrow Agent will give such notices and
communications to CDS.
(e) If CDS resigns or is removed from its responsibility as depository and
the Escrow Agent is unable or does not wish to locate a qualified
successor, CDS shall surrender the Global Subscription Receipt to the
Escrow Agent with instructions for registration of Subscription
Receipts in the name and in the amount specified by CDS and the Trust
shall issue and the Escrow Agent shall certify and deliver the
aggregate number of Subscription Receipts then outstanding in the form
of definitive Subscription Receipt Certificates representing such
Subscription Receipts.
2.15 NO REGISTRATION IN THE UNITED STATES
The Escrow Agent acknowledges that the Subscription Receipts
and Units have not been registered under the 1933 Act. Furthermore, in
accordance with Section 21 of the Underwriting Agreement, the Trust and the Lead
Underwriter acknowledge and agree that the Subscription Receipts have not been
offered or sold within the United States nor have any "directed selling efforts"
been made, nor will any "directed selling efforts" be made, within the United
States by the Underwriters with respect to the Subscription Receipts.
2.16 LISTING OF SUBSCRIPTION RECEIPTS
The Trust confirms that the Subscription Receipts will be
listed and posted for trading on the Toronto Stock Exchange.
2.17 RIGHT OF RESCISSION
(a) If the Prospectus, together with any amendment thereto, contains a
misrepresentation (as such term is defined in the SECURITIES ACT
(Alberta)) and it was a misrepresentation on the date hereof,
purchasers of Subscription Receipts to whom the Prospectus was sent or
delivered and who were the original purchasers of the Subscription
Receipts (the "ORIGINAL PURCHASERS") shall have a right of action
against the Trust for rescission to receive the Subscription Price
exerciseable on notice given to the Trust not more than 180 days
subsequent to the date hereof. The right of action for rescission is
only available to an Original Purchaser either while he or she is a
holder of the Subscription Receipts purchased or while he or she is a
holder of the Units issuable upon surrender of such Subscription
Receipts.
(b) In no event shall the Trust be liable under this Section 2.17 if the
Original Purchaser purchased the Subscription Receipts with knowledge
of the misrepresentation.
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ARTICLE 3
SATISFACTION OF ISSUANCE RIGHT
OR TERMINATION PAYMENT RIGHT
3.1 NOTICE OF ACQUISITION
If the Acquisition Time occurs by the Deadline: (a) the Trust
shall forthwith cause the Acquisition Notice to be delivered to the Escrow Agent
and the Lead Underwriter on behalf of the Underwriters and the Trust shall
concurrently deliver to the Escrow Agent, the Irrevocable Transfer Agent
Direction and the Escrow Agent will issue the Units issuable pursuant to the
Subscription Receipts and make any required payment as provided herein, and (b)
the Trust shall issue a press release confirming the Acquisition has been
completed and setting out the Acquisition Date and that the underlying Units
have been or will be issued to Receiptholders effective as at the Issue Time.
3.2 RELEASE OF FUNDS ON ACQUISITION DATE OR FOR DEPOSIT INTO
ESCROW ARRANGEMENT TO CLOSE ACQUISITION
(a) If the Escrow Release Condition occurs by the Deadline, the Trust shall
be entitled to receive from the Escrow Agent the Proceeds and any
Earned Interest thereon, less (i) the amount, if any, required to make
the payments set forth in Section 3.3(b); and (ii) the amount required
to make the payment set forth in Section 3.7 (collectively, the
"RELEASED AMOUNT"). The Escrow Agent shall deliver the Released Amount
to or to the order of the Trust as soon as reasonably practicable after
it receives the written confirmation that the Escrow Release Condition
has been satisfied.
(b) In addition, the Trust shall be entitled to receive from the Escrow
Agent the Released Amount prior to the satisfaction of the Escrow
Release Condition upon the Escrow Agent receiving the following
documents before the Deadline:
(i) a notice in writing in substantially the form attached hereto
as Schedule "D" hereto (the "JOINT NOTICE") signed by the
Trust and the Lead Underwriter, on behalf of the Underwriters,
(i) confirming that the Trust wishes to deposit the Released
Amount into an escrow arrangement (the "ESCROW ARRANGEMENT")
with Burnet, Duckworth & Palmer LLP, or such other escrow
agent satisfactory to the Trust and the Lead Underwriter, each
acting reasonably, (the "ESCROW ARRANGEMENT AGENT") for
purposes of closing the Acquisition and such Escrow
Arrangement Agent shall provide for the Released Amount to be
delivered to or to the order of Anadarko for the purposes of
closing the Acquisition and to be returned to the Escrow Agent
immediately if the Acquisition does not take place on the date
indicated on the Joint Notice, and (ii) directing the Escrow
Agent to deliver the Released Amount to the Escrow Arrangement
Agent; and
(ii) an undertaking substantially in the form attached hereto as
Schedule "E" hereto (the "JOINT UNDERTAKING") signed by the
Trust and AOG that the Released Amount is being delivered to
the Escrow Arrangement Agent for deposit pursuant to the terms
of the Escrow Arrangement for purposes of closing the
Acquisition and that the Released Amount will be returned to
the Escrow Agent immediately if the Acquisition does not take
place on the date indicated on the Joint Undertaking, which
funds shall be released or returned pursuant to the terms of
this Agreement.
Upon receipt of such Joint Notice and Joint Undertaking, the
Escrow Agent shall promptly deliver the Released Amount to the Escrow
Arrangement Agent. Upon the Trust receiving
13
confirmation from the Escrow Arrangement Agent that the Acquisition has closed,
the provisions of Section 3.1 shall apply MUTATIS MUTANDIS.
3.3 ISSUE OF UNITS AND PAYMENT THEREON
(a) If the Acquisition Time occurs by the Deadline, the Units shall be and
shall be deemed to be issued to the Receiptholder in accordance with
the right of such holder as described in Section 2.2(a) hereof (which
right shall be and shall be deemed to be exercised upon the occurrence
of the Acquisition Time) and such Units shall be deemed to be issued
pursuant to the Trust Indenture at the Issue Time, notwithstanding that
a certificate or a Book-Entry Only System customer confirmation
therefor may not yet have been issued or entered, as the case may be,
and the persons to whom such Units are to be issued in accordance with
the provisions of this Agreement shall be deemed to have become the
holders of record of such Units at the Issue Time.
(b) If the Acquisition Time occurs by the Deadline, the Receiptholder of
record at such time shall be entitled from and after the Issue Time,
but shall receive (subject to Section 3.1) no earlier than on the
second Business Day following the Acquisition Date, an amount equal to
such holder's Acquisition Payment, if any, less applicable withholding
taxes, if any, provided that to the extent that this amount, if any,
represents amounts in respect of cash distributions for which record
dates have occurred but which have not yet been paid, such amount shall
not be payable to holders, unless the Trust otherwise elects, until the
date such cash distributions are paid to Unitholders; and provided
further any Earned Interest shall be paid to the Trust unless
Acquisition Payments are required to be paid to each holder, in which
case such Acquisition Payments shall be satisfied out of the Earned
Interest on the Escrowed Funds. If the Escrowed Funds and Earned
Interest are not sufficient to meet the payments required by this
Section 3.3(b), the Escrow Agent shall only make payments under this
section to the extent monies have been deposited with it pursuant to
Section 3.6. Subject to sufficient funds being available to it, the
Escrow Agent agrees to cause any amounts to be paid to holders of
Subscription Receipts pursuant to this Section 3.3 to be paid on the
second Business Day following the Acquisition Date or the date cash
distributions are paid to Unitholders, as applicable.
(c) Upon the issuance or deemed issuance of the Units pursuant to the
Subscription Receipts, the Trust, subject to the provisions of the
Trust Indenture, shall direct CDS to cause to be entered and issued, as
the case may be, to the person or persons in whose name or names such
Units have been issued, a Book-Entry Only System customer confirmation,
together with a cheque or cheques or wire transfer for the amounts
specified in Section 3.3(b).
(d) Effective immediately after the Units have been issued as contemplated
in Section 3.3(a) and cheque(s) or wire transfer(s) for the amount
specified in Section 3.3(b) have been issued and mailed or delivered
(and provided such cheque(s) have been honoured for payment, if
presented for payment within six months of the date hereof), the
Subscription Receipts relating thereto shall be void and of no value or
effect. For greater certainty, any Escrowed Funds, interest or other
monies held by the Escrow Agent pursuant hereto after the cheque or
cheques or wire transfers for the amount specified in Section 3.3(b)
have been mailed or delivered, as the case may be, shall be delivered
to the Trust as soon as reasonably practicable thereafter.
3.4 PAYMENT ON TERMINATION
(a) If the Acquisition is terminated, the Trust advises the Underwriters or
announces to the public that it does not intend to proceed with the
Acquisition or the Acquisition Time does not occur, in
14
any such case, by the Deadline, the Trust shall forthwith notify the
Escrow Agent thereof and shall issue a press release setting forth the
Termination Date.
(b) If the Acquisition is terminated, the Trust advises the Underwriters or
announces to the public that it does not intend to proceed with the
Acquisition or the Acquisition Time does not occur, in any such case,
by the Deadline, the subscription evidenced by each Subscription
Receipt shall be automatically terminated and cancelled and each
Receiptholder shall be entitled from and after the Termination Payment
Time, but shall receive no earlier than on the second Business Day
following the Termination Date, a payment in the aggregate amount of
(i) the Subscription Price in respect of each of such holder's
Subscription Receipts; and (ii) such holder's PRO RATA share of the
Earned Interest less applicable withholding taxes, if any. The amount
paid to each Receiptholder under (i) shall be satisfied by the Escrowed
Funds and the amount in (ii), if any, shall be satisfied by the Earned
Interest. If the Escrowed Funds are not satisfactory to meet the
payment required by Section 3.4(b), the Escrow Agent shall only make
payments under this section to the extent monies have been deposited
with it pursuant to Section 3.6. The Escrow Agent agrees to cause any
amounts to be paid to the holders of Subscription Receipts pursuant to
this Section 3.4 on the second Business Day following the Termination
Date.
(c) If the Acquisition Time does not occur by the Deadline, registers for
the Subscription Receipts shall be closed at the close of business on
the Termination Date.
(d) The obligation to make the payment of the amount specified in Section
3.4(b) shall be satisfied by mailing or delivering payment by cheque or
wire transfer to the registered holder of the Subscription Receipt at
its registered address.
(e) Upon the mailing or delivery of any cheque or wire transfer as provided
in Section 3.4(d) (and provided such cheque has been honoured for
payment, if presented for payment within six months of the date
thereof) all rights evidenced by the Subscription Receipts relating
thereto shall be satisfied and such Subscription Receipts shall be void
and of no value or effect. For greater certainty, any Escrowed Funds,
interest or other monies held by the Escrow Agent pursuant hereto after
the cheque or wire transfer for the amount specified in Section 3.4(d)
have been mailed or delivered, as the case may be, shall be delivered
to the Trust as soon as reasonably practicable thereafter.
3.5 CANCELLATION OF SURRENDERED SUBSCRIPTION RECEIPT CERTIFICATES
All Subscription Receipt Certificates surrendered to the
Escrow Agent pursuant to Sections 2.10, 2.11 and 5.1 shall be returned to or
received by the Escrow Agent for cancellation and, if required by the Trust, the
Escrow Agent shall furnish the Trust with a cancellation certificate identifying
the Subscription Receipt Certificates so cancelled and the number of
Subscription Receipts evidenced thereby.
3.6 ADDITIONAL PAYMENTS BY THE TRUST
The Trust shall, no later than one (1) Business Day before the
date upon which the Acquisition Payment is required to be paid pursuant to
Article 3, pay to the Escrow Agent such amount, if any, as will be sufficient to
allow the Escrow Agent to pay in full the Acquisition Payment as is required
under the circumstances.
15
3.7 PAYMENT OF UNDERWRITING FEE
Upon the release of the Released Amount pursuant to Section
3.2(a), the Escrow Agent shall concurrently deliver a certified cheque or bank
draft or complete a wire transfer payable to Scotia Capital Inc. on behalf of
the Underwriters in the amount of $1,645,000.
ARTICLE 4
INVESTMENT OF PROCEEDS
AND PAYMENT OF INTEREST
4.1 INVESTMENT OF PROCEEDS
Pending disbursement of the Escrowed Funds, the Escrow Agent
shall hold, invest and reinvest the Proceeds on behalf of the Receiptholders in
short-term obligations of, or guaranteed by, the Government of Canada, corporate
commercial paper which is rated R1 (high), investment certificates of a Canadian
bank and other approved investments as directed in writing by the Trust. If at
any time the Proceeds include cash that is not invested and the Trust has not
provided directions to the Escrow Agent to invest such cash, the Escrow Agent
shall deposit all such uninvested cash in an account, a term deposit or
guaranteed investment certificates of the Escrow Agent or a Canadian bank,
having either no fixed term or no irrevocable term and which pays interest on
the daily balance.
4.2 SEGREGATION OF PROCEEDS
The Escrowed Funds received by the Escrow Agent and any
securities or other instruments received by the Escrow Agent upon the investment
or reinvestment of such Escrowed Funds, shall be received as agent for, and
shall be segregated and kept apart by the Escrow Agent as agent for, the
Receiptholders and the Underwriters.
ARTICLE 5
RIGHTS OF THE TRUST AND COVENANTS
5.1 OPTIONAL PURCHASES BY THE TRUST
Subject to applicable law, the Trust may from time to time
purchase by private contract or otherwise any of the Subscription Receipts.
5.2 GENERAL COVENANTS
(a) The Trust covenants with the Escrow Agent and the Lead Underwriter, on
behalf of the Underwriters, that so long as any Subscription Receipts
remain outstanding:
(i) it will use its reasonable best efforts to maintain its
existence;
(ii) it will make all requisite filings under applicable Canadian
securities legislation including those necessary to remain a
reporting issuer not in material default in each of the
Provinces of Canada in which it is presently a reporting
issuer;
(iii) it will announce by press release the occurrence of the
Acquisition Date or the Termination Date, as the case may be,
in accordance with Section 3.1 or Section 3.4(a), as the case
may be;
16
(iv) generally, it will well and truly perform and carry out all of
the acts or things to be done by it as provided in this
Agreement;
(v) prior to the earlier of the Acquisition Date and the
Termination Date, it will not sell the properties or assets of
the Trust as, or substantially as, an entirety, to any other
entity;
(vi) it will reserve and keep available a sufficient number of
Units for the purpose of enabling it to satisfy its
obligations to issue Units pursuant to the Subscription
Receipts;
(vii) it will cause the Units and the certificates representing the
Units from time to time acquired pursuant to the Subscription
Receipts to be duly issued and delivered in accordance with
the Subscription Receipts and the terms hereof; and
(viii) it will use its reasonable best efforts to ensure that (until
the earlier of the Issue Date and the Termination Date) the
Subscription Receipts and the Units continue to be or are
listed and posted for trading on the Toronto Stock Exchange.
(b) In addition, the Trust covenants with the Escrow Agent and the Lead
Underwriter, on behalf of the Underwriters, that, from the date hereof
to the earlier of the Termination Date and the Acquisition Date, it
will not do any of the following:
(i) subdivide or redivide the outstanding Units into a greater
number of units;
(ii) reduce, combine or consolidate the outstanding Units into a
smaller number of units;
(iii) issue Units to holders of all or substantially all of the
outstanding Units by way of a dividend or distribution (other
than the issue of Units to holders of Units who have elected
to receive distributions in the form of Units in lieu of cash
distributions paid in the ordinary course on the Units);
(iv) fix a record date for the making of a distribution to all or
substantially all the holders of its outstanding Units of (i)
units of any class other than Units and other than units
distributed to holders of Units who have elected to receive
distributions in the form of such units in lieu of
distributions paid in the ordinary course, or (ii) rights,
options or warrants; or
(v) reclassify the Units or undertake a reorganization of the
Trust or a consolidation, amalgamation, arrangement, merger or
similar transaction of the Trust with any other Person or
other entity; or a sale or conveyance of the property and
assets of the Trust as an entirety or substantially as an
entirety to any other Person or entity or a liquidation,
dissolution or winding-up of the Trust.
5.3 ESCROW AGENT'S REMUNERATION, EXPENSES AND INDEMNIFICATION
(a) The Trust covenants that it will pay to the Escrow Agent from time to
time reasonable remuneration for its services hereunder and will pay or
reimburse the Escrow Agent upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Escrow
Agent in the administration or execution of this Agreement (including
the reasonable compensation and the disbursements of its counsel and
all other advisers and assistants not regularly in its employ) both
before any default hereunder and thereafter until all duties of the
Escrow Agent hereunder shall be finally and fully performed, except any
such expense,
17
disbursement or advance as may arise out of or result from the Escrow
Agent's negligence, wilful misconduct or bad faith. Any amount owing
hereunder and remaining unpaid after 30 days from the invoice date will
bear interest at the then current rate charged by the Escrow Agent
against unpaid invoices and shall be payable on demand.
(b) The Trust hereby indemnifies and saves harmless the Escrow Agent and
its officers, directors, employees and agents from and against any and
all liabilities, losses, costs, claims, actions or demands whatsoever
which may be brought against the Escrow Agent or which it may suffer or
incur as a result or arising out of the performance of its duties and
obligations under this Agreement, save only in the event of the
negligence, wilful misconduct or bad faith of the Escrow Agent. It is
understood and agreed that this indemnification shall survive the
termination or the discharge of this Agreement or the resignation or
replacement of the Escrow Agent.
5.4 PERFORMANCE OF COVENANTS BY ESCROW AGENT
If the Trust shall fail to perform any of its covenants
contained in this Agreement, the Escrow Agent may notify the Receiptholders and
the Lead Underwriter, on behalf of the Underwriters, of such failure on the part
of the Trust or may itself perform any of the covenants capable of being
performed by it, but shall be under no obligation to perform such covenants or
to notify the Receiptholders of such performance by it. All sums expended or
advanced by the Escrow Agent in so doing shall be repayable as provided in
Section 5.3. No such performance, expenditure or advance by the Escrow Agent
shall relieve the Trust of any default hereunder or of its continuing
obligations under the covenants contained herein.
5.5 ACCOUNTING
The Escrow Agent shall maintain accurate books, records and
accounts of the transactions effected or controlled by the Escrow Agent
hereunder and the receipt, investment, reinvestment and disbursement of the
Proceeds, and shall provide to the Trust and the Underwriters records and
statements thereof periodically upon written request. The Trust shall have the
right to audit any such books, records, accounts and statements.
5.6 PAYMENTS BY ESCROW AGENT
In the event that any funds to be disbursed by the Escrow
Agent in accordance herewith are received by the Escrow Agent in the form of an
uncertified cheque or cheques, the Escrow Agent shall be entitled to delay the
time for disbursement of such funds hereunder until such uncertified cheque or
cheques have cleared in the ordinary course the financial institution upon which
the same are drawn. The Escrow Agent will disburse monies according to this
Agreement only to the extent that monies have been deposited with it.
5.7 REGULATORY MATTERS
The Trust shall file all such documents, notices and
certificates and take such steps and do such things as may be necessary under
applicable securities laws to permit the issuance of the Units in the
circumstances contemplated by Section 3.3 such that (i) such issuance will
comply with the prospectus and registration requirements of applicable
securities laws and (ii) the first trade in Units will not be subject to, or
will be exempt from, the prospectus requirements of applicable securities laws.
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ARTICLE 6
ENFORCEMENT
6.1 SUITS BY RECEIPTHOLDERS
All or any of the rights conferred upon any Receiptholder by
any of the terms of the Subscription Receipt Certificates or of this Agreement,
or of both, may be enforced by the Receiptholder by appropriate proceedings but
without prejudice to the right which is hereby conferred upon the Escrow Agent
to proceed in its own name to enforce each and all of the provisions contained
herein for the benefit of the Receiptholders.
6.2 IMMUNITY OF UNITHOLDERS, ETC.
The Escrow Agent and, by the acceptance of the Subscription
Receipt Certificates and as part of the consideration for the issue of the
Subscription Receipts, the Receiptholders hereby waive and release any right,
cause of action or remedy now or hereafter existing in any jurisdiction against
any past, present or future Unitholder, director, officer, employee or agent of
the Trust or AOG or any successor entity for the issue of the Units pursuant to
any Subscription Receipt or on any covenant, agreement, representation or
warranty by the Trust contained herein or in the Subscription Receipt
Certificate(s) .
6.3 LIMITATION OF LIABILITY
The obligations hereunder are not personally binding upon, nor
shall resort hereunder be had to, the private property of any of the past,
present or future Unitholders, directors, officers or employees of the Trust or
AOG or any successor entity or any of the past, present or future officers,
employees or agents of the Trust or of any successor entity, but only the
property of the Trust or any successor entity shall be bound in respect hereof.
ARTICLE 7
MEETINGS OF RECEIPTHOLDERS
7.1 RIGHT TO CONVENE MEETINGS
The Escrow Agent may at any time and from time to time, and
shall on receipt of a written request of the Trust or of a Receiptholders'
Request and upon being indemnified to its reasonable satisfaction by the Trust
or by the Receiptholders signing such Receiptholders' Request against the cost
which may be incurred in connection with the calling and holding of such
meeting, convene a meeting of the Receiptholders. In the event of the Escrow
Agent failing to so convene a meeting within ten (10) days after receipt of such
written request of the Trust or such Receiptholders' Request and indemnity given
as aforesaid, the Trust or such Receiptholders, as the case may be, may convene
such meeting. Every such meeting shall be held in the City of Calgary or at such
other place as may be determined by the Escrow Agent and approved by the Trust.
7.2 NOTICE
At least ten (10) days prior notice of any meeting of
Receiptholders shall be given to the Receiptholders in the manner provided for
in Section 10.2 and a copy of such notice shall be sent by mail to the Escrow
Agent (unless the meeting has been called by the Escrow Agent) and to the Trust
(unless the meeting has been called by the Trust). Such notice shall state the
date (which should be a Business Day) and time when, and the place where the
meeting, is to be held, shall state briefly the general nature of the business
to be transacted thereat and shall contain such information as is reasonably
19
necessary to enable the Receiptholders to make a reasoned decision on the
matter, but it shall not be necessary for any such notice to set out the terms
of any resolution to be proposed or any of the provisions of this Article 7.
7.3 CHAIRMAN
An individual (who need not be a Receiptholder) designated in
writing by the Escrow Agent shall be chairman of the meeting and if no
individual is so designated, or if the individual so designated is not present
within fifteen (15) minutes from the time fixed for the holding of the meeting,
the Receiptholders present in person or by proxy shall choose some individual
present to be chairman.
7.4 QUORUM
Subject to the provisions of Section 7.11, at any meeting of
the Receiptholders a quorum shall consist of not less than two (2)
Receiptholders present in person or by proxy and holding 25% of the then
outstanding Subscription Receipts. If a quorum of the Receiptholders shall not
be present within thirty (30) minutes from the time fixed for holding any
meeting, the meeting, if summoned by the Receiptholders or on a Receiptholders'
Request, shall be dissolved; but in any other case the meeting shall be
adjourned to the same day in the next week (unless such day is not a Business
Day, in which case it shall be adjourned to the next following Business Day) at
the same time and place and no notice of the adjournment need be given. Any
business may be brought before or dealt with at an adjourned meeting that might
have been dealt with at the original meeting in accordance with the notice
calling the same. No business shall be transacted at any meeting unless a quorum
is present at the commencement of business. At the adjourned meeting the
Receiptholders present in person or by proxy shall form a quorum and may
transact the business for which the meeting was originally convened
notwithstanding that they may not hold at least 25% of the then outstanding
Subscription Receipts.
7.5 POWER TO ADJOURN
The chairman of any meeting at which a quorum of the
Receiptholders is present may, with the consent of the meeting, adjourn any such
meeting and no notice of such adjournment need be given except such notice, if
any, as the meeting may prescribe.
7.6 SHOW OF HANDS
Every question submitted to a meeting shall be decided in the
first place by a majority of the votes given on a show of hands except that
votes on an extraordinary resolution shall be given in the manner hereinafter
provided. At any such meeting, unless a poll is duly demanded as herein
provided, a declaration by the chairman that a resolution has been carried or
carried unanimously or by a particular majority or lost or not carried by a
particular majority shall be conclusive evidence of the fact.
7.7 POLL AND VOTING
On every extraordinary resolution, and on any other question
submitted to a meeting and after a vote by show of hands when demanded by the
chairman or by one or more of the Receiptholders acting in person or by proxy
and holding at least 5% of the then outstanding Subscription Receipts, a poll
shall be taken in such manner as the chairman shall direct. Questions other than
those required to be determined by extraordinary resolution shall be decided by
a majority of the votes cast on the poll.
On a show of hands, every person who is present and entitled
to vote, whether as a Receiptholder or as proxy for one or more absent
Receiptholders, or both, shall have one vote. On a poll, each Receiptholder
present in person or represented by a proxy duly appointed by instrument in
writing
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shall be entitled to one vote in respect of each Unit he is entitled to receive
pursuant to the Subscription Receipt(s) then held or represented by him. A proxy
need not be a Receiptholder. In the case of joint holders, any of them present
in person or by proxy at the meeting may vote in the absence of the other or
others; but in case more than one of them shall be present in person or by
proxy, they shall vote together in respect of Subscription Receipts of which
they are joint registered holders. The chairman of any meeting shall be
entitled, both on a show of hands and on a poll, to vote in respect of the
Subscription Receipts, if any, held or represented by him.
7.8 REGULATIONS
The Escrow Agent, or the Trust with the approval of the Escrow
Agent, may from time to time make and from time to time vary such regulations as
it shall think fit for:
(a) the setting of the record date for a meeting of holders of Subscription
Receipts for the purpose of determining Receiptholders entitled to
receive notice of and vote at such meeting;
(b) the issue of voting certificates by any bank, trust company or other
depositary satisfactory to the Escrow Agent stating that the
Subscription Receipt Certificates specified therein have been deposited
with it by a named person and will remain on deposit until after the
meeting, which voting certificate shall entitle the persons named
therein to be present and vote at any such meeting and at any
adjournment thereof or to appoint a proxy or proxies to represent them
and vote for them at any such meeting and at any adjournment thereof in
the same manner and with the same effect as though the persons so named
in such voting certificates were the actual holders of the Subscription
Receipt Certificates specified therein;
(c) the deposit of voting certificates and instruments appointing proxies
at such place and time as the Escrow Agent, the Trust or the
Receiptholders, convening the meeting, as the case may be, may in the
notice convening the meeting direct;
(d) the deposit of voting certificates and instruments appointing proxies
at some approved place or places other than the place at which the
meeting is to be held and enabling particulars of such instruments
appointing proxies to be mailed or telecopied before the meeting to the
Trust or to the Escrow Agent at the place where the same is to be held
and for the voting of proxies so deposited as though the instruments
themselves were produced at the meeting;
(e) the form of the instrument of proxy; and
(f) generally for the calling of meetings of Receiptholders and the conduct
of business thereat.
Any regulations so made shall be binding and effective and the
votes given in accordance therewith shall be valid and shall be counted. Save as
such regulations may provide, the only persons who shall be recognized at any
meeting as a Receiptholder, or be entitled to vote or be present at the meeting
in respect thereof (subject to Section 7.9), shall be Receiptholders or their
counsel, or proxies of Receiptholders.
7.9 TRUST AND ESCROW AGENT MAY BE REPRESENTED
The Trust, AOG and the Escrow Agent, by their respective
authorized agents, and the counsel for the Trust and for the Escrow Agent may
attend any meeting of the Receiptholders, but shall have no vote as such unless
in their capacity as Receiptholder or a proxy holder.
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7.10 POWERS EXERCISABLE BY EXTRAORDINARY RESOLUTION
In addition to all other powers conferred upon them by any
other provisions of this Agreement or by law, the Receiptholders at a meeting
shall, subject to the provisions of Section 7.11, have the power, subject to all
applicable regulatory and exchange approvals, exercisable from time to time by
extraordinary resolution:
(a) to agree to any modification, abrogation, alteration, compromise or
arrangement of the rights of Receiptholders or the Escrow Agent against
the Trust or against its undertaking, property and assets or any part
thereof whether such rights arise under this Agreement or the
Subscription Receipt Certificates or otherwise;
(b) to amend, alter or repeal any extraordinary resolution previously
passed or sanctioned by the Receiptholders;
(c) to direct or to authorize the Escrow Agent to enforce any of the
covenants on the part of the Trust contained in this Agreement or the
Subscription Receipt Certificates or to enforce any of the rights of
the Receiptholders in any manner specified in such extraordinary
resolution or to refrain from enforcing any such covenant or right;
(d) to waive, and to direct the Escrow Agent to waive, any default on the
part of the Trust in complying with any provisions of this Agreement or
the Subscription Receipt Certificates either unconditionally or upon
any conditions specified in such extraordinary resolution;
(e) to restrain any Receiptholder from taking or instituting any suit,
action or proceeding against the Trust for the enforcement of any of
the covenants on the part of the Trust in this Agreement or the
Subscription Receipt Certificates or to enforce any of the rights of
the Receiptholders;
(f) to direct any Receiptholder who, as such, has brought any suit, action
or proceeding to stay or to discontinue or otherwise to deal with the
same upon payment of the costs, charges and expenses reasonably and
properly incurred by such Receiptholder in connection therewith;
(g) to assent to any modification of, change in or omission from the
provisions contained in the Subscription Receipt Certificates and this
Agreement or any ancillary or supplemental instrument which may be
agreed to by the Trust, and to authorize the Escrow Agent to concur in
and execute any ancillary or supplemental agreement embodying the
change or omission;
(h) with the consent of the Trust (such consent not to be unreasonably
withheld), to remove the Escrow Agent or its successor in office and to
appoint a new Escrow Agent to take the place of the Escrow Agent so
removed;
(i) to assent to any compromise or arrangement with any creditor or
creditors or any class or classes of creditors, whether secured or
otherwise, and with holders of any Units or other securities of the
Trust; and
(j) to assent to any modification of the Trust Indenture in circumstances
where, had the Units then been outstanding, an extraordinary resolution
of the holders of Units would have been required.
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7.11 MEANING OF EXTRAORDINARY RESOLUTION
(a) The expression "extraordinary resolution" when used in this Agreement
means, subject as hereinafter provided in this Section 7.11 and in
Section 7.14, a resolution proposed at a meeting of Receiptholders duly
convened for that purpose and held in accordance with the provisions of
this Article 7 at which there are present in person or by proxy at
least two (2) Receiptholders holding more than 25% of the then
outstanding Subscription Receipts and passed by the affirmative votes
of Receiptholders holding not less than 66 2/3% of the then outstanding
Subscription Receipts represented at the meeting and voted on the poll
upon such resolution.
(b) If, at any meeting called for the purpose of passing an extraordinary
resolution, at least two (2) Receiptholders holding more than 25% of
the then outstanding Subscription Receipts are not present in person or
by proxy within thirty (30) minutes after the time appointed for the
meeting, then the meeting, if convened by Receiptholders or on a
Receiptholders' Request, shall be dissolved; but in any other case it
shall stand adjourned to such day, being not less than fourteen (14) or
more than thirty (30) days later, and to such place and time as may be
appointed by the chairman. Not less than seven (7) days prior notice
shall be given of the time and place of such adjourned meeting in the
manner provided for in Section 10.2. Such notice shall state that at
the adjourned meeting the Receiptholders 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
(i) if the extraordinary resolution purports to exercise any of
the powers conferred pursuant to Subsection 7.10 (a), (d),
(g), (i) or (j) or purports to change the provisions of this
Section 7.11 or of Section 7.14 or purports to amend, alter or
repeal any extraordinary resolution previously passed or
sanctioned by the Receiptholders in exercise of the powers
referred to in this paragraph, a quorum for the transaction of
business shall consist of Receiptholders holding more than 25%
of the then outstanding Subscription Receipts present in
person or by proxy; and
(ii) in any other case, a quorum for the transaction of business
shall consist of such Receiptholders as are present in person
or by proxy.
(c) At any such adjourned meeting, any resolution passed by the requisite
votes as provided in Subsection 7.11(a) shall be an extraordinary
resolution within the meaning of this Agreement notwithstanding that
Receiptholders holding more than 25% of the then outstanding
Subscription Receipts are not present in person or by proxy at such
adjourned meeting.
(d) Votes on an extraordinary resolution shall always be given on a poll
and no demand for a poll on an extraordinary resolution shall be
necessary.
7.12 POWERS CUMULATIVE
Any one or more of the powers or any combination of the powers
in this Agreement stated to be exercisable by the Receiptholders by
extraordinary resolution or otherwise may be exercised from time to time and the
exercise of any one or more of such powers or any combination of powers from
time to time shall not be deemed to exhaust the right of the Receiptholders to
exercise such power or powers or combination of powers then or thereafter from
time to time.
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7.13 MINUTES
Minutes of all resolutions and proceedings at every meeting of
Receiptholders shall be made and duly entered in books to be provided from time
to time for that purpose by the Escrow Agent at the expense of the Trust, and
any such minutes as aforesaid, if signed by the chairman or the secretary of the
meeting at which such resolutions were passed or proceedings had or by the
chairman or secretary of the next succeeding meeting held shall be prima facie
evidence of the matters therein stated and, until the contrary is proved, every
such meeting in respect of the proceedings of which minutes shall have been made
shall be deemed to have been duly convened and held, and all resolutions passed
thereat or proceedings taken shall be deemed to have been duly passed and taken.
7.14 INSTRUMENTS IN WRITING
All actions which may be taken and all powers that may be
exercised by the Receiptholders at a meeting held as provided in this Article 7
may also be taken and exercised by an instrument in writing signed in one or
more counterparts by such Receiptholders in person or by attorney duly appointed
in writing, by Receiptholders holding at least 66 2/3% of then outstanding
Subscription Receipts with respect to an extraordinary resolution, and the
expression "extraordinary resolution" when used in this Agreement shall include
an instrument so signed by Receiptholders holding at least 66 2/3% of the then
outstanding Subscription Receipts.
7.15 BINDING EFFECT OF RESOLUTIONS
Every resolution and every extraordinary resolution passed in
accordance with the provisions of this Article 7 at a meeting of Receiptholders
shall be binding upon all the Receiptholders, whether present at or absent from
such meeting, and every instrument in writing signed by Receiptholders in
accordance with Section 7.14 shall be binding upon all the Receiptholders,
whether signatories thereto or not, and each and every Receiptholder and the
Escrow Agent (subject to the provisions for indemnity herein contained) shall be
bound to give effect accordingly to every such resolution and instrument in
writing.
7.16 HOLDINGS BY TRUST DISREGARDED
In determining whether Receiptholders holding the required
number of Subscription Receipts are present at a meeting of Receiptholders for
the purpose of determining a quorum or have concurred in any consent, waiver,
extraordinary resolution, Receiptholders' Request or other action under this
Agreement, Subscription Receipts owned legally or beneficially by the Trust or
any affiliated entity of the Trust shall be disregarded in accordance with the
provisions of Section 10.7.
ARTICLE 8
SUPPLEMENTAL AGREEMENTS
8.1 PROVISION FOR SUPPLEMENTAL AGREEMENTS FOR CERTAIN PURPOSES
From time to time the Trust (when authorized by action by
AOG), the Lead Underwriter, on behalf of the Underwriters, and the Escrow Agent
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, agreements supplemental hereto, which thereafter shall form part
hereof, for any one or more or all of the following purposes:
24
(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 Escrow Agent prejudicial to the interests of the
Receiptholders;
(b) giving effect to any extraordinary resolution passed as provided in
Article 7;
(c) making such provisions not inconsistent with this Agreement 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
Escrow Agent, prejudicial to the interests of the Receiptholders;
(d) adding to or altering the provisions hereof in respect of the transfer
of Subscription Receipts, making provision for the exchange of
Subscription Receipt Certificates, and making any modification in the
form of the Subscription Receipt Certificates which does not affect the
substance thereof,
(e) modifying any of the provisions of this Agreement, including relieving
the Trust 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 Escrow
Agent, such modification or relief in no way prejudices any of the
rights of the Receiptholders or of the Escrow Agent, and provided
further that the Escrow Agent may in its sole discretion decline to
enter into any such supplemental agreement which in its opinion may not
afford adequate protection to the Escrow Agent when the same shall
become operative; and
(f) for any other purpose not inconsistent with the terms of this
Agreement, including the correction or rectification of any
ambiguities, defective or inconsistent provisions, errors, mistakes or
omissions herein, provided that in the opinion of the Escrow Agent the
rights of the Escrow Agent and of the Receiptholders are in no way
prejudiced thereby.
ARTICLE 9
CONCERNING THE ESCROW AGENT
9.1 RIGHTS AND DUTIES OF ESCROW AGENT
(a) In the exercise of the rights and duties prescribed or conferred by the
terms of this Agreement, the Escrow Agent shall exercise that degree of
care, diligence and skill that a reasonably prudent escrow agent would
exercise in comparable circumstances. No provision of this Agreement
shall be construed to relieve the Escrow Agent from liability for its
own negligent action, its own negligent failure to act, or its own
wilful misconduct or bad faith.
(b) The obligation of the Escrow Agent to commence or continue any act,
action or proceeding for the purpose of enforcing any rights of the
Escrow Agent or the Receiptholders hereunder shall be conditional upon
the Receiptholders furnishing, when required by notice by the Escrow
Agent, sufficient funds to commence or to continue such act, action or
proceeding and an indemnity reasonably satisfactory to the Escrow Agent
to protect and to hold harmless the Escrow Agent against the costs,
charges and expenses and liabilities to be incurred thereby and any
loss and damage it may suffer by reason thereof. None of the provisions
contained in this Agreement shall require the Escrow Agent to expend or
to risk its own funds or otherwise to incur financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers unless indemnified as aforesaid.
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(c) The Escrow Agent may, before commencing or at any time during the
continuance of any such act, action or proceeding, require the
Receiptholders at whose instance it is acting to deposit with the
Escrow Agent the Subscription Receipts held by them, for which
Subscription Receipts the Escrow Agent shall issue receipts.
(d) Every provision of this Agreement that by its terms relieves the Escrow
Agent of liability or entitles it to rely upon any evidence submitted
to it is subject to the provisions of this Section 9.1 and of Section
9.2.
(e) The Escrow Agent shall have no duties except those expressly set forth
herein, and it shall not be bound by any notice of a claim or demand
with respect to, or any waiver, modification, amendment, termination or
rescission of, this Agreement, unless received by it in writing and
signed by the other parties hereto and, if its duties herein are
affected, unless it shall have given its prior written consent thereto.
(f) The Escrow Agent shall not be responsible for ensuring that the
Proceeds are used in the manner contemplated by the Prospectus.
(g) The Escrow Agent shall retain the right not to act and shall not be
held liable for refusing to act unless it has received clear and
reasonable documentation which complies with the terms of this
Agreement, which documentation does not require the exercise of any
discretion or independent judgment.
(h) The Escrow Agent shall incur no liability whatsoever with respect to
the delivery or non-delivery of any certificates whether delivery by
hand, mail or any other means.
(i) The Escrow Agent shall not be responsible or liable in any manner
whatsoever for the deficiency, correctness, genuineness or validity of
any securities deposited with it.
9.2 EVIDENCE, EXPERTS AND ADVISERS
(a) In addition to the reports, certificates, opinions and other evidence
required by this Agreement, the Trust shall furnish to the Escrow Agent
such additional evidence of compliance with any provision hereof, and
in such form, as the Escrow Agent may reasonably require by written
notice to the Trust.
(b) In the exercise of its rights and duties hereunder, the Escrow Agent
may, if it is acting in good faith, rely as to the truth of the
statements and the accuracy of the opinions expressed in statutory
declarations, opinions, reports, written requests, consents, or orders
of the Trust, certificates of the Trust or other evidence furnished to
the Escrow Agent pursuant to any provision hereof or pursuant to a
request of the Escrow Agent.
(c) Whenever it is provided in this Agreement that the Trust shall deposit
with the Escrow Agent resolutions, certificates, reports, opinions,
requests, orders or other documents, it is intended that the trust,
accuracy and good faith on the effective date thereof and the facts and
opinions stated in all such documents so deposited shall, in each and
every such case, be conditions precedent to the right of the Trust to
have the Escrow Agent take the action to be based thereon.
(d) Proof of the execution of an instrument in writing, including a
Receiptholders' Request, by any Receiptholder may be made by the
certificate of a notary public, or other officer with similar powers,
that the person signing such instrument acknowledged to the officer the
26
execution thereof, or by an affidavit of a witness to such execution or
in any other manner which the Escrow Agent may consider adequate.
(e) The Escrow Agent may employ or retain such Counsel, accountants,
appraisers or other experts or advisers as it may reasonably require
for the purpose of discharging its duties hereunder and may pay
reasonable remuneration for all services so performed by any of them,
without taxation of costs of any Counsel, and shall not be responsible
for any misconduct or negligence on the part of any such experts or
advisers who have been appointed with due care by the Escrow Agent.
9.3 DOCUMENTS, MONIES, ETC. HELD BY ESCROW AGENT
Any securities, documents of title or other instruments that
may at any time be held by the Escrow Agent pursuant to this Agreement may be
placed in the deposit vaults of the Escrow Agent or of any Canadian bank or
deposited for safekeeping with any such bank. If the Escrow Agent has not
received a direction under Section 4.1, any monies so held pending the
application or withdrawal thereof under any provisions of this Agreement may be
deposited in the name of the Escrow Agent in any Canadian bank, or in the
deposit department of the Escrow Agent or any other loan or trust company
authorized to accept deposits under the laws of Canada or a province thereof, at
the rate of interest (if any) then current on similar deposits.
9.4 ACTIONS BY ESCROW AGENT TO PROTECT INTEREST
The Escrow Agent shall have power to institute and to maintain
such actions and proceedings as it may consider necessary or expedient to
preserve, protect or enforce its interests and the interests of the
Receiptholders.
9.5 ESCROW AGENT NOT REQUIRED TO GIVE SECURITY
The Escrow Agent shall not be required to give any bond or
security in respect of the execution of this Agreement or otherwise in respect
of the premises.
9.6 PROTECTION OF ESCROW AGENT
By way of supplement to the provisions of any law for the time
being relating to trustees it is expressly declared and agreed as follows:
(a) the Escrow Agent shall not be liable for or by reason of any statements
of fact or recitals in this Agreement or in the Subscription Receipt
Certificates (except the representation contained in Section 9.8 or in
the certificate of the Escrow Agent on the Subscription Receipt
Certificates) or be required to verify the same, but all such
statements or recitals are and shall be deemed to be made by the Trust;
(b) nothing herein contained shall impose any obligation on the Escrow
Agent to see to or to require evidence of the registration or filing
(or renewal thereof) of this Agreement or any instrument ancillary or
supplemental hereto;
(c) the Escrow Agent shall not be bound to give notice to any person or
persons of the execution hereof; and
(d) the Escrow Agent shall not incur any liability or responsibility
whatever or be in any way responsible for the consequence of any breach
on the part of the Trust of any of the covenants herein contained or of
any acts of any officers, employees, agents or servants of the Trust or
AOG.
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9.7 REPLACEMENT OF ESCROW AGENT; SUCCESSOR BY MERGER
(a) The Escrow Agent may resign its appointment and be discharged from all
other duties and liabilities hereunder, subject to this Section 9.7, by
giving to the Trust not less than thirty (30) days prior notice in
writing or such shorter prior notice as the Trust may accept as
sufficient. The Receiptholders by extraordinary resolution shall have
power at any time to remove the existing Escrow Agent and to appoint a
new Escrow Agent. In the event of the Escrow Agent resigning or being
removed as aforesaid or being dissolved, becoming bankrupt, going into
liquidation or otherwise becoming incapable of acting hereunder, the
Lead Underwriter, on behalf of the Underwriters, shall forthwith
appoint a new escrow agent unless a new escrow agent has already been
appointed by the Receiptholders; failing such appointment by the Lead
Underwriter, on behalf of the Underwriters, the retiring Escrow Agent
or any Receiptholder may apply to a justice of the Court of Queen's
Bench (Alberta) on such notice as such justice may direct, for the
appointment of a new escrow agent; but any new escrow agent so
appointed by the Lead Underwriter, on behalf of the Underwriters, or by
the Court shall be subject to removal as aforesaid by the
Receiptholders. Any new escrow agent appointed under any provision of
this Section 9.7 shall be a corporation authorized to carry on the
business of a trust company in the Provinces of Alberta and Ontario
and, if required by the applicable legislation for any other provinces,
in such other provinces. On any such appointment, the new escrow agent
shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named herein as Escrow
Agent hereunder. At the request of the Trust or the new Escrow Agent,
the retiring Escrow Agent, upon payment of the amounts, if any, due to
it pursuant to Section 5.3, shall duly assign, transfer and deliver to
the new Escrow Agent all property and money held and all records kept
by the retiring Escrow Agent hereunder or in connection herewith.
(b) Upon the appointment of a successor escrow agent, the Trust shall
promptly notify the Receiptholders thereof in the manner provided for
in Article 10.
(c) Any corporation into or with which the Escrow Agent may be merged or
consolidated or amalgamated, or any corporation resulting therefrom to
which the Escrow Agent shall be a party, or any corporation succeeding
to the corporate trust business of the Escrow Agent shall be the
successor to the Escrow Agent hereunder without any further act on its
part or any of the parties hereto, provided that such corporation would
be eligible for appointment as a successor escrow agent under
Subsection 9.7(a).
(d) Any Subscription Receipt Certificates certified but not delivered by a
predecessor escrow agent may be delivered by the successor escrow agent
in the name of the predecessor or successor escrow agent.
9.8 CONFLICT OF INTEREST
(a) The Escrow Agent represents to the Trust and the Lead Underwriter, on
behalf of the Underwriters, that at the time of execution and delivery
hereof no material conflict of interest exists between its role as a
escrow agent hereunder and its role in any other capacity and agrees
that in the event of a material conflict of interest arising hereafter
it will, within thirty (30) days after ascertaining that it has such
material conflict of interest, either eliminate the same or assign its
appointment as escrow agent hereunder to a successor escrow agent
approved by the Trust and meeting the requirements set forth in
Subsection 9.7(a). Notwithstanding the foregoing provisions of this
28
Subsection 9.8(a), if any such material conflict of interest exists or
hereafter shall exist, the validity and enforceability of this
Agreement and the Subscription Receipt Certificates shall not be
affected in any manner whatsoever by reason thereof.
(b) Subject to Subsection 9.8(a), the Escrow Agent, in its personal or any
other capacity, may buy, lend upon and deal in securities of the Trust
and generally may contract and enter into financial transactions with
the Trust or any affiliated entity of the Trust without being liable to
account for any profit made thereby.
9.9 ACCEPTANCE OF APPOINTMENT
The Escrow Agent hereby accepts the appointment as escrow
agent in this Agreement and agrees to perform its duties hereunder upon the
terms and conditions herein set forth.
9.10 ESCROW AGENT NOT TO BE APPOINTED RECEIVER
The Escrow Agent and any person related to the Escrow Agent
shall not be appointed a receiver, a receiver and manager or liquidator of all
or any part of the assets or undertaking of the Trust.
ARTICLE 10
GENERAL
10.1 NOTICE TO THE TRUST, ESCROW AGENT AND THE LEAD UNDERWRITER
(a) Unless herein otherwise expressly provided, any notice to be given
hereunder to the Trust, the Underwriters or the Escrow Agent shall be
deemed to be validly given if delivered by hand courier or if
transmitted by telecopier:
(i) if to the Trust:
Advantage Energy Income Fund
3100, 150 - 6th Avenue S.W.
Calgary, Alberta T2P 3H7
Attention: Vice-President, Finance and Chief
Financial Officer
Facsimile: (403) 261-8810
(ii) if to the Lead Underwriter, on behalf of the Underwriters:
Scotia Capital Inc.
1800, 700 - 2nd Street S.W.
Calgary, Alberta T2P 2W1
Attention: Steven Kroeker
Facsimile: (403) 298-4099
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(iii) if to the Escrow Agent:
Computershare Trust Company of Canada
600, 530-8th Avenue S.W.
Calgary, AB T2P 3S8
Attention: General Manager, Corporate Trust Services
Facsimile: (403) 267-6598
and any such notice delivered in accordance with the foregoing shall be
deemed to have been received on the date of delivery or, if telecopied
on the day of transmission or, if such day is not a Business Day, on
the first Business Day following the day of transmission.
(b) The Trust, the Lead Underwriter, on behalf of the Underwriters, or the
Escrow Agent, as the case may be, may from time to time notify the
other in the manner provided in Section 10.1(a) of a change of address
which, from the effective date of such notice and until changed by like
notice, shall be the address of the Trust, the Lead Underwriter, on
behalf of the Underwriters, or the Escrow Agent, as the case may be,
for all purposes of this Agreement.
10.2 NOTICE TO RECEIPTHOLDERS
(a) Any notice to the Receiptholders under the provisions of this Agreement
shall be valid and effective if delivered or sent by letter or circular
through the ordinary post addressed to such holders at their post
office addresses appearing on the register hereinbefore mentioned and
shall be deemed to have been effectively given on the date of delivery
or, if mailed, five (5) Business Days following actual posting of the
notice.
(b) If, by reason of a strike, lockout or other work stoppage, actual or
threatened, involving postal employees, any notice to be given to the
Receiptholders hereunder could reasonably be considered unlikely to
reach its destination, such notice shall be valid and effective only if
it is delivered personally to such Receiptholders or if delivered to
the address for such Receiptholders contained in the register of
Subscription Receipts maintained by the Escrow Agent.
10.3 OWNERSHIP AND TRANSFER OF SUBSCRIPTION RECEIPTS
The Trust and the Escrow Agent may deem and treat the
registered owner of any Subscription Receipt Certificate or, in the case of a
transferee who has surrendered a Subscription Receipt Certificate in accordance
with and as contemplated in Sections 2.13 and 2.14, such transferee, as the
absolute owner of the Subscription Receipt represented thereby for all purposes,
and the Trust and the Escrow Agent shall not be affected by any notice or
knowledge to the contrary except where the Trust or the Escrow Agent is required
to take notice by statute or by order of a court of competent jurisdiction. A
Receiptholder shall be entitled to the rights evidenced by such Subscription
Receipt Certificate free from all equities or rights of set off or counterclaim
between the Trust and the original or any intermediate holder thereof and all
persons may act accordingly and the receipt of any such Receiptholder for the
Units which may be acquired pursuant thereto shall be a good discharge to the
Trust and the Escrow Agent for the same and neither the Trust nor the Escrow
Agent shall be bound to inquire into the title of any such holder except where
the Trust or the Escrow Agent is required to take notice by statute or by order
of a court of competent jurisdiction.
30
10.4 EVIDENCE OF OWNERSHIP
(a) Upon receipt of a certificate of any bank, trust company or other
depositary satisfactory to the Escrow Agent stating that the
Subscription Receipts specified therein have been deposited by a named
person with such bank, trust company or other depositary and will
remain so deposited until the expiry of the period specified therein,
the Trust and the Escrow Agent may treat the person so named as the
owner, and such certificate as sufficient evidence of the ownership by
such person of such Subscription Receipt during such period, for the
purpose of any requisition, direction, consent, instrument or other
document to be made, signed or given by the holder of the Subscription
Receipt so deposited.
(b) The Trust and the Escrow Agent may accept as sufficient evidence of the
fact and date of the signing of any requisition, direction, consent,
instrument or other document by any person (i) the signature of any
officer of any bank, trust company, or other depositary satisfactory to
the Escrow Agent as witness of such execution, (ii) the certificate of
any notary public or other officer authorized to take acknowledgments
of deeds to be recorded at the place where such certificate is made
that the person signing acknowledged to him the execution thereof, or
(iii) a statutory declaration of a witness of such execution.
10.5 SATISFACTION AND DISCHARGE OF AGREEMENT
Upon the earlier of:
(a) the issue of certificates or Book-Entry Only System customer
confirmations representing Units and payment of all monies required as
provided in Section 3.3; or
(b) the payment of all monies required where the Acquisition is terminated
or the Acquisition Time does not occur by the Deadline as provided in
Section 3.4,
this Agreement shall cease to be of further effect and the Escrow Agent, on
demand of and at the cost and expense of the Trust and upon delivery to the
Escrow Agent of a certificate of the Trust stating that all conditions precedent
to the satisfaction and discharge of this Agreement have been complied with,
shall execute proper instruments acknowledging satisfaction of and discharging
this Agreement. Notwithstanding the foregoing, the indemnities provided to the
Escrow Agent by the Trust hereunder shall remain in full force and effect and
survive the termination of this Agreement.
10.6 PROVISIONS OF AGREEMENT AND SUBSCRIPTION RECEIPTS FOR THE SOLE
BENEFIT OF PARTIES AND RECEIPTHOLDERS
Nothing in this Agreement or in the Subscription Receipt
Certificates, expressed or implied, shall give or be construed to give to any
person other than the parties hereto and the Receiptholders any legal or
equitable right, remedy or claim under this Agreement, or under any covenant or
provision herein or therein contained, all such covenants and provisions being
for the sole benefit of the parties hereto, the Receiptholders and such
transferees.
10.7 SUBSCRIPTION RECEIPTS OWNED BY THE TRUST OR ITS SUBSIDIARIES -
CERTIFICATE TO BE PROVIDED
For the purpose of disregarding any Subscription Receipts
owned legally or beneficially by the Trust or any affiliated entity of the Trust
in Section 7.16, the Trust shall provide to the Escrow Agent, from time to time,
a certificate of the Trust setting forth as at the date of such certificate the
31
number of Subscription Receipts owned legally or beneficially by the Trust or
any affiliated entity of the Trust, and the Escrow Agent, in making the
computations in Section 7.16, shall be entitled to rely on such certificate
without requiring further evidence thereof.
10.8 EFFECT OF EXECUTION
Notwithstanding any provision of this Agreement, should any
Subscription Receipt Certificates be issued and certified in accordance with the
terms hereof prior to the actual time of execution of this Agreement by the
Trust and the Escrow Agent, any such Subscription Receipt Certificates shall be
void and of no value and effect until such actual execution.
10.9 CONTRACTUAL OBLIGATIONS OF THE TRUST
The parties hereto acknowledge that the obligations of the
Trust hereunder shall not be personally binding upon the Trustee, or any of the
unitholders of the Trust and that any recourse against the Trust, the Trustee or
any unitholder in any manner in respect of any indebtedness, obligation or
liability of the Trust arising in connection herewith or from the matters to
which this agreement relates, if any, 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, as
amended from time to time.
10.10 TIME OF ESSENCE
Time is and shall remain of the essence of this Agreement.
10.11 COUNTERPARTS
This Agreement may be executed and delivered in counterparts,
each of which when so executed and delivered shall be deemed to be an original
and such counterparts together shall constitute one and the same instrument and
notwithstanding their date of execution they shall be deemed to be dated as of
the date hereof.
32
IN WITNESS WHEREOF the parties hereto have executed this
Agreement under their respective corporate seals and the hands of their proper
officers in that behalf.
ADVANTAGE ENERGY INCOME FUND by
Advantage Oil & Gas Ltd.
By: /s/ Peter Hanrahan
---------------------------------
SCOTIA CAPITAL INC., ON ITS OWN BEHALF
AND ON BEHALF OF BMO NESBITT BURNS INC.,
NATIONAL BANK FINANCIAL INC., RBC
DOMINION SECURITIES INC., CIBC WORLD
MARKETS INC., FIRSTENERGY CAPITAL CORP.,
AND RAYMOND JAMES LTD.
SCOTIA CAPITAL INC.
By: /s/ Steven Kroeker
---------------------------------
COMPUTERSHARE TRUST COMPANY OF CANADA
By: /s/ Dan Sander
---------------------------------
By: /s/ Jacqueline Spink
---------------------------------
A-1
SCHEDULE "A"
This is Schedule "A" to a Subscription Receipt Agreement
made as of September 14, 2004 among Advantage Energy
Income Fund, Scotia Capital Inc., BMO Nesbitt Burns Inc.,
National Bank Financial Inc., RBC Dominion Securities
Inc., CIBC World Markets Inc., FirstEnergy Capital Corp.
and Raymond James Ltd. and Computershare Trust Company of
Canada, as Escrow Agent
----------------------------------------------------------
FORM OF SUBSCRIPTION RECEIPT CERTIFICATE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
CANADIAN DEPOSITORY FOR SECURITIES LIMITED ("CDS") TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN
RESPECT THEREOF IS REGISTERED IN THE NAME OF CDS & CO., OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CDS (AND ANY PAYMENT IS MADE TO
CDS & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF CDS), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED HOLDER HEREOF,
CDS & CO., HAS AN INTEREST HEREIN.
ADVANTAGE ENERGY INCOME FUND
(an unincorporated trust formed under the laws of Alberta)
NUMBER: CUSIP/ISIN: 00762L119
THIS IS TO CERTIFY THAT ______________ (the "HOLDER") is the registered holder
of the Subscription Receipts represented hereby.
The Subscription Receipts represented by this Subscription Receipt certificate
(this "CERTIFICATE") are issued pursuant to a Subscription Receipt Agreement
("AGREEMENT") dated September 14, 2004, among Advantage Energy Income Fund (the
"Trust"), Computershare Trust Company of Canada (the "ESCROW AGENT") and Scotia
Capital Inc., on its own behalf and on behalf of BMO Nesbitt Burns Inc.,
National Bank Financial Inc., RBC Dominion Securities Inc., CIBC World Markets
Inc., FirstEnergy Capital Corp. and Raymond James Ltd. (collectively, the
"UNDERWRITERS").
Capitalized terms used in the Agreement have the same meaning herein as therein,
unless otherwise defined.
Each Subscription Receipt entitles the holder:
(a) if the Acquisition Time occurs by the Deadline, to receive,
for no additional consideration, one Unit plus such holder's
Acquisition Payment, if any, less applicable withholding
taxes, if any; or
(b) if the Acquisition Time does not occur by the Deadline, the
Acquisition is terminated at any earlier time or the Trust has
advised the Underwriters or announced to the public that it
does not intend to proceed with the Acquisition, to receive an
amount equal to the sum of the Subscription Price and such
holder's PRO RATA share of the Earned Interest, less
applicable withholding taxes, if any, all in the manner and on
the terms and conditions set out in the Agreement.
A-2
The Subscription Receipts represented hereby are issued under and pursuant to
the Agreement. Reference is hereby made to the Agreement and any and all other
instruments supplemental or ancillary thereto for a full description of the
rights of the holders of the Subscription Receipts and the terms and conditions
upon which such Subscription Receipts are, or are to be, issued and held, all to
the same effect as if the provisions of the Agreement and all instruments
supplemental or ancillary thereto were herein set forth, and to all of which
provisions the holder of these Subscription Receipts by acceptance hereof
assents. In the event of a conflict or inconsistency between the terms of the
Agreement and this Certificate, the terms of the Agreement shall prevail.
The holding of the Subscription Receipts evidenced by this Certificate shall not
constitute the holder hereof a Unitholder or entitle such holder to any right or
interest in respect thereof except as herein and in the Agreement expressly
provided.
The Agreement contains provisions making binding upon all holders of
Subscription Receipts outstanding thereunder resolutions passed at meetings of
such holders held in accordance with such provisions and by instruments in
writing signed by the holders of a specified majority of the outstanding
Subscription Receipts.
The Subscription Receipts evidenced by this Certificate may be transferred on
the register kept at the offices of the Escrow Agent by the registered holder
hereof or his legal representatives or his attorney duly appointed by an
instrument in writing in form and execution satisfactory to the Escrow Agent,
only upon payment of the charges provided for in the Agreement and upon
compliance with such reasonable requirements as the Escrow Agent may prescribe.
The transfer register shall be closed at 5:00 p.m. (Calgary time) on the earlier
to occur of the Acquisition Date and the Termination Date (subject to settlement
of trades).
This Certificate shall not be valid for any purpose whatever unless and until it
has been countersigned by or on behalf of the Escrow Agent.
Time shall be of the essence hereof. This Certificate is governed by the laws of
Alberta and the laws of Canada applicable therein.
IN WITNESS WHEREOF the Trust has caused this Certificate to be signed by a duly
authorized representative as of , 2004.
ADVANTAGE ENERGY INCOME FUND,
by Advantage Oil & Gas Ltd.
----------------------------------
Countersigned by:
COMPUTERSHARE TRUST COMPANY OF
CANADA, as Escrow Agent
- --------------------------------
B-1
SCHEDULE "B"
This is Schedule "B" to a Subscription Receipt Agreement
made as of September 14, 2004 among Advantage Energy
Income Fund, Scotia Capital Inc., BMO Nesbitt Burns Inc.,
National Bank Financial Inc., RBC Dominion Securities
Inc., CIBC World Markets Inc., FirstEnergy Capital Corp.
and Raymond James Ltd. and Computershare Trust Company of
Canada, as Escrow Agent
---------------------------------------------------------
IRREVOCABLE TRANSFER AGENT DIRECTION
TO: COMPUTERSHARE TRUST COMPANY OF CANADA
This Irrevocable Transfer Agent Direction is being provided
pursuant to subparagraph 3.1(a) of the Subscription Receipt Agreement (the
"Subscription Receipt Agreement") dated September 14, 2004 among Advantage
Energy Income Fund (the "Trust"), Scotia Capital Inc., BMO Nesbitt Burns Inc.,
National Bank Financial Inc., RBC Dominion Securities Inc., CIBC World Markets
Inc., FirstEnergy Capital Corp. and Raymond James Ltd. and Computershare Trust
Company of Canada (the "Escrow Agent").
Capitalized terms which are not otherwise defined herein shall
have the meanings ascribed to such terms in the Subscription Receipt Agreement.
The Escrow Agent is hereby irrevocably directed and
authorized, in its capacity as registrar and transfer agent of the Units and as
Escrow Agent
(a) to issue on behalf of the Trust, [__________] fully paid and
non-assessable Units to the person or persons to whom such
Units are to be issued pursuant to the terms of the
Subscription Receipt Agreement and the Subscription Receipt
Certificates following the occurrence of the Acquisition Time
prior to the Deadline (which occurred on [_________], 2004),
all in accordance with the provisions of the Subscription
Receipt Certificate and the Subscription Receipt Agreement.
Such Units shall be delivered to the Receiptholders through
CDS;
(b) forthwith upon receipt from the Trust of the required funds as
set forth in subsection 3.3(b) and Section 3.6 of the
Subscription Receipt Agreement, to pay and deliver, on behalf
of the Trust, an aggregate of [$ _________] of Acquisition
Payment to the person or persons to whom such payments are to
be made following the occurrence of the Acquisition Time prior
to the Deadline (which occurred on , 2004), all in
accordance with the provisions of the Agreement and the
Subscription Receipt(s). Such payment shall be delivered to
the Receiptholders through CDS; and
(c) to release from the Escrowed Funds to Scotia Capital Inc., on
behalf of the Underwriters, the sum of $o.
DATED at Calgary, Alberta, this day of , 2004.
ADVANTAGE ENERGY INCOME FUND, by
Advantage Oil & Gas Ltd.
Per: /s/ Peter Hanrahan
-----------------------
Peter Hanrahan
Vice-President, Finance and
Chief Financial Officer
C-1
SCHEDULE "C"
This is Schedule "C" to a Subscription Receipt Agreement
made as of September 14, 2004 among Advantage Energy
Income Fund, Scotia Capital Inc., BMO Nesbitt Burns Inc.,
National Bank Financial Inc., RBC Dominion Securities
Inc., CIBC World Markets Inc., FirstEnergy Capital Corp.
and Raymond James Ltd. and Computershare Trust Company of
Canada, as Escrow Agent
----------------------------------------------------------
ACQUISITION NOTICE
TO: COMPUTERSHARE TRUST COMPANY OF CANADA
AND TO: SCOTIA CAPITAL INC. ON BEHALF OF THE UNDERWRITERS (AS DEFINED BELOW)
This Acquisition Notice is being provided pursuant to paragraph
3.1(a) of the Subscription Receipt Agreement (the "Subscription Receipt
Agreement") dated September 14, 2004 among Advantage Energy Income Fund (the
"Trust"), Computershare Trust Company of Canada (the "Escrow Agent") and Scotia
Capital Inc., BMO Nesbitt Burns Inc., National Bank Financial Inc., RBC Dominion
Securities Inc., CIBC World Markets Inc., FirstEnergy Capital Corp. and Raymond
James Ltd. (collectively, the "Underwriters").
Capitalized terms which are not otherwise defined herein shall have
the meanings ascribed to such terms in the Subscription Receipt Agreement.
The Escrow Agent is hereby notified by the Trust that the Acquisition
Time has occurred prior to the Deadline.
DATED at Calgary, Alberta, this day of , 2004.
ADVANTAGE ENERGY INCOME FUND, by
Advantage Oil & Gas Ltd.
Per: /s/ Peter Hanrahan
-----------------------
Peter Hanrahan
Vice-President, Finance
and Chief Financial Officer
D-1
SCHEDULE "D"
This is Schedule "D" to a Subscription Receipt Agreement
made as of September 14, 2004 among Advantage Energy
Income Fund, Scotia Capital Inc., BMO Nesbitt Burns Inc.,
National Bank Financial Inc., RBC Dominion Securities
Inc., CIBC World Markets Inc., FirstEnergy Capital Corp.
and Raymond James Ltd. and Computershare Trust Company of
Canada, as Escrow Agent
---------------------------------------------------------
JOINT NOTICE
TO: COMPUTERSHARE TRUST COMPANY OF CANADA
This Joint Notice is being provided pursuant to paragraph 3.2(b)(i) of
the Subscription Receipt Agreement (the "Subscription Receipt Agreement") dated
September 14, 2004 among Advantage Energy Income Fund (the "Trust"),
Computershare Trust Company of Canada (the "Escrow Agent") and Scotia Capital
Inc., on its own behalf and on behalf of BMO Nesbitt Burns Inc., National Bank
Financial Inc., RBC Dominion Securities Inc., CIBC World Markets Inc.,
FirstEnergy Capital Corp. and Raymond James Ltd. (collectively, the
"Underwriters").
Capitalized terms which are not otherwise defined herein shall have the
meanings ascribed to such terms in the Subscription Receipt Agreement.
The Trust and the Lead Underwriter, on behalf of the Underwriters, hereby
confirm that the Trust wishes to deposit the Released Amount into an escrow
arrangement (the "Escrow Arrangement") with Burnet, Duckworth & Palmer LLP (the
"Escrow Arrangement Agent") for the purposes of closing the Acquisition and the
Escrow Arrangement Agent shall provide for the Released Amount to be delivered
to the order of Anadarko on behalf of AOG for the purposes of closing the
Acquisition and to be returned to the Escrow Agent immediately if the
Acquisition does not close on the date hereof and further, hereby direct the
Escrow Agent to deliver the Released Amount to the Escrow Arrangement Agent via
wire transfer at 8:00 a.m. (Toronto time) on Wednesday, September 15, 2004 as
follows:
Beneficiary Account Name: Burnet, Duckworth & Palmer LLP in Trust
c/o TD Bank/Canada Trust
340, 5th Avenue S.W.
Calgary, Alberta T2P 2P6
Branch Transit Number: 80609 004
Beneficiary Account Number: 08050330658
Swift Code: TDOMCATT
DATED at Calgary, Alberta, this 15th day of September, 2004.
ADVANTAGE ENERGY INCOME FUND,
by Advantage Oil & Gas Ltd. SCOTIA CAPITAL INC., ON ITS OWN BEHALF
AND ON BEHALF OF BMO NESBITT BURNS INC.,
NATIONAL BANK FINANCIAL INC., RBC
Per: /s/ DOMINION SECURITIES INC., CIBC WORLD
------------------------------ MARKETS INC., FIRSTENERGY CAPITAL CORP.,
Peter Hanrahan AND RAYMOND JAMES LTD.
Peter Hanrahan
Vice-President, Finance and SCOTIA CAPTIAL INC.
Chief Financial Officer
By:
--------------------------------
Acknowledged this 15th day of September, 2004.
BURNET, DUCKWORTH & PALMER LLP
Per: /s/
---------------------------------------
E-1
SCHEDULE "E"
This is Schedule "E" to a Subscription Receipt Agreement
made as of September 14, 2004 among Advantage Energy
Income Fund, Scotia Capital Inc., BMO Nesbitt Burns Inc.,
National Bank Financial Inc., RBC Dominion Securities
Inc., CIBC World Markets Inc., FirstEnergy Capital Corp.
and Raymond James Ltd. and Computershare Trust Company of
Canada, as Escrow Agent
---------------------------------------------------------
JOINT UNDERTAKING
TO: COMPUTERSHARE TRUST COMPANY OF CANADA
This Joint Undertaking is being provided pursuant to paragraph
3.2(b)(ii) of the Subscription Receipt Agreement (the "Subscription Receipt
Agreement") dated September 14, 2004 among Advantage Energy Income Fund (the
"Trust"), Computershare Trust Company of Canada (the "Escrow Agent") and Scotia
Capital Inc., on its own behalf and on behalf of BMO Nesbitt Burns Inc.,
National Bank Financial Inc., RBC Dominion Securities Inc., CIBC World Markets
Inc., FirstEnergy Capital Corp. and Raymond James Ltd. (collectively, the
"Underwriters").
Capitalized terms which are not otherwise defined herein shall have
the meanings ascribed to such terms in the Subscription Receipt Agreement.
The Trust and Advantage Oil & Gas Ltd. hereby undertake to the
Escrow Agent that the Released Amount is being delivered to Burnet, Duckworth &
Palmer LLP for deposit pursuant to the terms of the Escrow Arrangement for the
purposes of closing the Acquisition and that if the Acquisition does not occur
on the date hereof, the Released Amount will be immediately returned to the
Escrow Agent which funds shall be released or returned pursuant to the terms of
the Subscription Receipt Agreement.
DATED at Calgary, Alberta, this 15th day of September, 2004.
ADVANTAGE ENERGY INCOME FUND, by
Advantage Oil & Gas Ltd.
Per: /s/ Peter Hanrahan
-----------------------
Peter Hanrahan
Vice-President, Finance
and Chief Financial Officer
ADVANTAGE OIL & GAS LTD.
Per: /s/ Peter Hanrahan
-----------------------
Peter Hanrahan
Vice-President, Finance
and Chief Financial Officer
Acknowledged this 15th day of September, 2004.
BURNET, DUCKWORTH & PALMER LLP
Per:
---------------------------------------