EXHIBIT 99.40
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SUPPORT AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 21st day of
December, 2004.
AMONG:
COMPUTERSHARE TRUST COMPANY OF CANADA, a trust
company incorporated under the laws of Canada in its
capacity as trustee for and on behalf of ADVANTAGE
ENERGY INCOME FUND, a trust settled and governed
pursuant to the laws of Alberta ("ADVANTAGE TRUST");
- and -
ADVANTAGE OIL & GAS LTD., a corporation incorporated
under the laws of Alberta (hereinafter referred to
as "AOG")
- and -
COMPUTERSHARE TRUST COMPANY OF CANADA, a trust
company incorporated under the laws of Canada, in
its capacity as trustee for and on behalf of the
beneficiaries under the Voting and Exchange Trust
Agreement (as hereinafter defined) (the "TRUSTEE")
- and -
ADVANTAGE EXCHANGECO LTD., a corporation
incorporated under the laws of Alberta (hereinafter
referred to as "EXCHANGECO")
WHEREAS pursuant to an arrangement agreement dated as of
November 3, 2004 among Defiant Energy Corporation, AOG, 1135488 Alberta Ltd. and
Advantage Trust (such agreement, as it may be further amended or restated, is
hereafter referred to as the "ARRANGEMENT AGREEMENT"), the parties agreed that
on the Effective Date (as defined in the Arrangement Agreement) the parties
would execute and deliver a support agreement which would govern the
relationship among the parties as it related to the issuance and existence of
exchangeable shares (the "EXCHANGEABLE SHARES") in the capital of AOG, which
were issued pursuant to the Arrangement;
AND WHEREAS the articles of AOG set forth the rights,
privileges, restrictions and conditions (collectively, the "SHARE PROVISIONS")
attaching to the Exchangeable Shares;
AND WHEREAS the parties hereto desire to make appropriate
provision and to establish a procedure whereby Advantage Trust and ExchangeCo
will take certain actions and make certain payments and deliveries necessary to
ensure that AOG will be able to make certain payments and to deliver or cause to
be delivered trust units ("ADVANTAGE TRUST UNITS") in satisfaction of the
obligations of AOG under the Share Provisions with respect to the payment and
satisfaction of dividends, Liquidation Amounts, Retraction Prices and Redemption
Prices, all in accordance with the Share Provisions;
NOW THEREFORE in consideration of the respective covenants and
agreements provided in this Agreement and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereto covenant and agree as follows:
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ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINED TERMS
Each term denoted herein by initial capital letters and not
otherwise defined herein shall have the meaning attributed thereto in the Share
Provisions, unless the context requires otherwise.
1.2 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC.
The division of this agreement into Articles, Sections and
other portions and the insertion of headings are for convenience of reference
only and should not affect the construction or interpretation of this agreement.
Unless otherwise indicated, all references to an "Article" or "Section" followed
by a number and/or a letter refer to the specified Article or Section of this
agreement. The terms "this agreement", "hereof", "herein" and "hereunder" and
similar expressions refer to this agreement and not to any particular Article,
Section or other portion hereof and include any agreement or instrument
supplementary or ancillary hereto.
1.3 NUMBER, GENDER, ETC.
Words importing the singular number only shall include the
plural and vice versa. Words importing the use of any gender shall include all
genders.
1.4 DATE FOR ANY ACTION
If any date on which any action is required to be taken under
this agreement is not a Business Day, such action shall be required to be taken
on the next succeeding Business Day.
ARTICLE 2
COVENANTS OF THE TRUST, EXCHANGECO AND AOG
2.1 COVENANTS OF ADVANTAGE TRUST AND EXCHANGECO REGARDING
EXCHANGEABLE SHARES
So long as any Exchangeable Shares are outstanding, Advantage
Trust and ExchangeCo each agree that:
(a) Advantage Trust will, as soon as practicable following the declaration
of any Distribution, issue a press release as to the resulting change
in the Exchange Ratio for the Exchangeable Shares;
(b) Advantage Trust and ExchangeCo will take all such actions and do all
such things as are necessary or desirable to enable and permit AOG, in
accordance with applicable law, to pay and otherwise perform its
obligations with respect to the satisfaction of the Liquidation Amount
in respect of each issued and outstanding Exchangeable Share upon the
liquidation, dissolution or winding-up of AOG or any other distribution
of the assets of AOG for the purpose of winding-up its affairs,
including without limitation all such actions and all such things as
are necessary or desirable to enable and permit AOG to cause to be
delivered Advantage Trust Units to holders of Exchangeable Shares in
accordance with the provisions of Article 6 of the Share Provisions;
(c) Advantage Trust and ExchangeCo will take all such actions and do all
such things as are necessary or desirable to enable and permit AOG, in
accordance with applicable law, to pay and otherwise perform its
obligations with respect to the satisfaction of a Retraction Request by
a holder of Exchangeable Shares or a redemption of Exchangeable Shares
by AOG, including without limitation all such actions and all such
things as are necessary or desirable to enable and permit AOG to cause
to be delivered Advantage Trust Units to such holder, upon the
retraction or redemption of the Exchangeable Shares in accordance with
the provisions of Article 4 or Article 5 of the Share Provisions, as
the case may be;
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(d) If ExchangeCo exercises a Call Right or is the purchaser upon the
exercise of the Exchange Rights and does not pay the Liquidation
Amount, Retraction Price, Redemption Price or purchase price payable
upon exercise of the Exchange Rights, as the case may be, at the time
such amount becomes payable by ExchangeCo pursuant to the Share
Provisions or the Voting and Exchange Trust Agreement then Advantage
Trust shall forthwith pay such amount and, Advantage Trust and
ExchangeCo shall thereafter be jointly and severally liable to pay such
amount until it is duly paid; and
(e) Advantage Trust will not exercise its vote as a shareholder of AOG to
initiate the voluntary liquidation, dissolution or winding-up of AOG
nor take any action or omit to take any action that is designed to
result in the liquidation, dissolution or winding-up of AOG.
2.2 SEGREGATION OF FUNDS
Subject to the exercise by Advantage Trust or ExchangeCo of
any of the Call Rights, Advantage Trust will cause AOG to, from time to time,
deposit a sufficient amount of funds in a separate account and segregate a
sufficient amount of such assets and other property as is necessary to enable
AOG to pay or otherwise satisfy the applicable dividends, Liquidation Amount,
Retraction Price or Redemption Price, in each case for the benefit of holders
from time to time of the Exchangeable Shares, and AOG will use such funds,
assets and other property so segregated exclusively for the payment of dividends
and the payment or other satisfaction of the Liquidation Amount, the Retraction
Price or the Redemption Price, as applicable, net of any corresponding
withholding tax obligations and for the remittance of such withholding tax
obligations.
2.3 NOTIFICATION OF CERTAIN EVENTS
In order to assist Advantage Trust and ExchangeCo to comply
with their respective obligations hereunder, AOG will give Advantage Trust and
ExchangeCo notice of each of the following events at the time set forth below:
(a) immediately, in the event of any determination by the Board of
Directors of AOG to take any action which would require a vote of the
holders of Exchangeable Shares for approval;
(b) immediately, upon the earlier of: (i) receipt by AOG of notice of; and
(ii) AOG otherwise becoming aware of, any threatened or instituted
claim, suit, petition or other proceedings with respect to the
involuntary liquidation, dissolution or winding-up of AOG or to effect
any other distribution of the assets of AOG among its shareholders for
the purpose of winding-up its affairs;
(c) immediately, upon receipt by AOG of a Retraction Request;
(d) at least 90 days prior to any Redemption Date;
(e) as soon as practicable upon the issuance by AOG of any Exchangeable
Shares or any rights to acquire same; and
(f) in the event of any determination by the Board of Directors of AOG to
institute voluntary liquidation, dissolution or winding-up proceedings
with respect to AOG or to effect any other distribution of the assets
of AOG among its shareholders for the purpose of winding-up its
affairs, at least 60 days prior to the proposed effective date of such
liquidation, dissolution, winding-up or other distribution.
2.4 DELIVERY OF ADVANTAGE TRUST UNITS
In furtherance of its obligations hereunder, upon notice of
any event which requires AOG to cause to be delivered Advantage Trust Units to
any holder of Exchangeable Shares, subject to the exercise by Advantage Trust or
ExchangeCo of any of the Call Rights, Advantage Trust shall forthwith issue and
deliver the requisite Advantage Trust Units to or to the order of the former
holder of the surrendered Exchangeable Shares, as AOG shall direct. All such
Advantage Trust Units shall be free and clear of any lien, claim, encumbrance,
security
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interest or adverse claim or interest. Advantage Trust hereby represents,
warrants and covenants that it has irrevocably reserved for issuance and will at
all times keep available, free from pre-emptive and other rights, out of its
authorized and unissued trust units such number of Advantage Trust Units (or
other units or securities into which Advantage Trust Units may be reclassified
or changed as contemplated by Section 2.6 hereof) (i) as is equal to the sum of
the number of Advantage Trust Units issuable upon the redemption, retraction or
exchange of all (A) Exchangeable Shares issued and outstanding from time to time
and (B) Exchangeable Shares issuable upon the exercise of all rights to acquire
Exchangeable Shares outstanding from time to time and (ii) as are now and may
hereafter be required to enable and permit AOG to meet its obligations
hereunder, under the Voting and Exchange Trust Agreement, under the Share
Provisions and under any other security or commitment pursuant to which
Advantage Trust may now or hereafter be required to issue Advantage Trust Units.
2.5 QUALIFICATION OF ADVANTAGE TRUST UNITS
Advantage Trust and AOG covenant that if any Advantage Trust
Units (or other securities into which Advantage Trust Units may be reclassified
or changed as contemplated by Section 2.6 hereof) to be issued and delivered
hereunder (including for greater certainty, in payment of or pursuant to, as
applicable, the Liquidation Amount, the Retraction Price, the Redemption Price,
the Liquidation Call Right, the Retraction Call Right, the Redemption Call
Right, the Exchange Rights or the Automatic Exchange Rights) (as that term is
defined in the Voting and Exchange Trust Agreement)), require registration or
qualification with or approval of or the filing of any document including any
prospectus or similar document, the taking of any proceeding with or the
obtaining of any order, ruling or consent from any governmental or regulatory
authority under any Canadian federal or provincial law or regulation or pursuant
to the rules and regulations of any regulatory authority, or the fulfilment of
any other legal requirement (collectively, the "APPLICABLE LAWS") before such
securities (or other securities into which Advantage Trust Units may be
reclassified or changed as contemplated by Section 2.6 hereof) may be delivered
by Advantage Trust or ExchangeCo to the initial holder thereof (other than AOG)
or in order that such securities may be freely traded thereafter (other than any
restrictions on transfer by reason of a holder being a "control person" of
Advantage Trust for purposes of Canadian federal or provincial securities law),
Advantage Trust and ExchangeCo will in good faith expeditiously take all such
actions and do all such things as are necessary to cause such Advantage Trust
Units (or other securities into which Advantage Trust Units may be reclassified
or changed as contemplated by Section 2.6 hereof) to be and remain duly
registered, qualified or approved. Advantage Trust and ExchangeCo represent and
warrant that they have in good faith taken all actions and done all things as
are necessary under Applicable Laws as they exist on the date hereof to cause
the Advantage Trust Units (or other securities into which Advantage Trust Units
may be reclassified or changed as contemplated by Section 2.6 hereof) to be
issued and delivered pursuant to the Share Provisions or the terms of the Voting
Exchange Trust Agreement to be freely tradeable thereafter (other than
restrictions on transfer by reason of a holder being a "control person" of
Advantage Trust for the purposes of Canadian federal and provincial securities
law). Advantage Trust and ExchangeCo will in good faith expeditiously take all
such actions and do all such things as are necessary to cause all Advantage
Trust Units (or other securities into which Advantage Trust Units may be
reclassified or changed as contemplated by Section 2.6 hereof) to be delivered
pursuant to the Share Provisions or the terms of the Voting Exchange Trust
Agreement to be listed, quoted or posted for trading on the Toronto Stock
Exchange or such other stock exchange or quotation system on which such
securities are principally listed, quoted or posted for trading at such time.
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2.6 EQUIVALENCE
(a) Advantage Trust will not:
(i) issue or distribute additional Advantage Trust Units (or
securities exchangeable for or convertible into or carrying
rights to acquire Advantage Trust Units) to the holders of all
or substantially all of the then outstanding Advantage Trust
Units by way of unit distribution or other distribution, other
than (A) an issue of Advantage Trust Units (or securities
exchangeable for or convertible into or carrying rights to
acquire Advantage Trust Units) to holders of Advantage Trust
Units who exercise an option to receive distributions in
Advantage Trust Units (or securities exchangeable for or
convertible into or carrying rights to acquire Advantage Trust
Units) in lieu of receiving cash distributions; or (B)
pursuant to Section 5.8 of the Advantage Trust Indenture;
(ii) issue or distribute rights, options or warrants to the holders
of all or substantially all of the then outstanding Advantage
Trust Units entitling them to subscribe for or to purchase
Advantage Trust Units (or securities exchangeable for or
convertible into or carrying rights to acquire Advantage Trust
Units);
(iii) issue or distribute to the holders of all or substantially all
of the then outstanding Advantage Trust Units:
(A) securities of Advantage Trust of any class other than
Advantage Trust Units (other than securities
convertible into or exchangeable for or carrying
rights to acquire Advantage Trust Units);
(B) rights, options or warrants other than those referred
to in subsection 2.6(a)(ii) above;
(C) evidences of indebtedness of Advantage Trust; or
(D) assets of Advantage Trust other than Distributions
which result in an adjustment to the Exchange Ratio;
(iv) subdivide, redivide or change the then outstanding Advantage
Trust Units into a greater number of Advantage Trust Units;
(v) reduce, combine or consolidate or change the then outstanding
Advantage Trust Units into a lesser number of Advantage Trust
Units except as contemplated by Section 3.4 of Advantage Trust
Indenture; or
(vi) reclassify or otherwise change the rights, privileges or other
terms of the Advantage Trust Units or effect an amalgamation,
merger, reorganization or other transaction affecting the
Advantage Trust Units;
unless
(vii) the same or an economically equivalent change is
simultaneously made to, or in the rights of the holders of the
Exchangeable Shares; or
(viii) it has received the prior written approval of AOG and the
approval of the holders of the Exchangeable Shares at meeting
of holders of Exchangeable Shares.
(b) Advantage Trust will ensure that the record date for any event referred
to in subsection 2.6(a) above, or (if no record date is applicable for
such event) the effective date for any such event, is not less than 10
Business Days after the date on which such event is declared or
announced by Advantage Trust (with simultaneous notice thereof to be
given by Advantage Trust to AOG).
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2.7 TENDER OFFERS, ETC.
In the event that a take-over bid or similar transaction with
respect to Advantage Trust Units (a "BID") is proposed by Advantage Trust or is
proposed to Advantage Trust or the holders of Advantage Trust Units, and is
recommended by the board of directors of AOG or is otherwise effected or to be
effected with the consent or approval of the board of directors of AOG,
Advantage Trust or AOG or both shall, in good faith, use reasonable efforts to
take all such actions and do all such things as are necessary or desirable to
enable and permit holders of Exchangeable Shares to participate in such Bid to
the same extent and on an economically equivalent basis as the holders of
Advantage Trust Units, without discrimination, including, without limiting the
generality of the foregoing, Advantage Trust or AOG or both will use its good
faith efforts expeditiously to (and shall, in the case of a transaction proposed
by Advantage Trust or AOG or both or where Advantage Trust or AOG or both is a
participant in the negotiation thereof) ensure that holders of Exchangeable
Shares may participate in all such Bids without being required to retract
Exchangeable Shares as against AOG (or, if so required, to ensure that any such
retraction shall be effective only upon, and shall be conditional upon, the
closing of the Bid and only to the extent necessary to tender or deposit to the
Bid).
2.8 OWNERSHIP OF OUTSTANDING SHARES
Advantage Trust covenants and agrees that, as long as any
outstanding Exchangeable Shares are owned by any person or entity other than
Advantage Trust, ExchangeCo or any of their respective affiliates, Advantage
Trust will, unless approval to do otherwise is obtained in accordance with
Section 10.2 of the Share Provisions from the holders of the Exchangeable
Shares, be and remain the direct or indirect beneficial owner of more than 50%
of all issued and outstanding voting securities of AOG. Notwithstanding the
foregoing, Advantage Trust shall not be in violation of this Section if any
person or group of persons acting jointly or in concert acquires all or
substantially all of the assets of Advantage Trust.
2.9 ADVANTAGE TRUST AND EXCHANGECO NOT TO VOTE EXCHANGEABLE SHARES
Advantage Trust and ExchangeCo covenant and agree that they
will appoint and cause to be appointed proxy holders with respect to all
Exchangeable Shares held by Advantage Trust, ExchangeCo or any of their
respective affiliates for the sole purpose of attending each meeting of holders
of Exchangeable Shares in order to be counted as part of the quorum for each
such meeting. Advantage Trust and ExchangeCo further covenant and agree that
they will not, and will cause their respective affiliates not to, exercise any
voting rights which may be exercisable by holders of Exchangeable Shares from
time to time pursuant to the Share Provisions or pursuant to the provisions of
the Act with respect to any Exchangeable Shares held by them or by their
respective affiliates in respect of any matter considered at any meeting of
holders of Exchangeable Shares.
2.10 DUE PERFORMANCE
On and after the Effective Date, Advantage Trust and
ExchangeCo shall duly and timely perform all of their obligations under the
Share Provisions.
2.11 NO SPECIFIED FINANCIAL INSTITUTION
On and after the effective date hereof and until AOG no longer
has any Exchangeable Shares issued and outstanding, none of Advantage Trust,
ExchangeCo or any of their Affiliates will be a "specified financial
institution" as that term is defined in the INCOME TAX ACT (Canada).
2.12 EXERCISE OF CALL RIGHTS
Advantage Trust and ExchangeCo covenant and agree that, as
long as any outstanding Exchangeable Shares are owned by any person or entity
other than Advantage Trust, ExchangeCo or any of their respective affiliates,
Advantage Trust and ExchangeCo will formulate a policy respecting whether
Advantage Trust and ExchangeCo or either of them will exercise any of the Call
Rights.
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ARTICLE 3
ADVANTAGE TRUST SUCCESSORS
3.1 CERTAIN REQUIREMENTS IN RESPECT OF COMBINATION, ETC.
Advantage Trust shall not complete any transaction (whether by
way of reconstruction, reorganization, consolidation, merger, transfer, sale,
lease or otherwise) whereby all or substantially all of its undertaking,
property and assets would become the property of any other person or, in the
case of a merger, of the continuing entity resulting therefrom unless, and may
do so if:
(a) such other person or continuing entity (herein called the "TRUST
SUCCESSOR"), by operation of law, becomes, without more, bound by the
terms and provisions of this agreement or, if not so bound, executes,
prior to or contemporaneously with the consummation of such
transaction, an agreement supplemental hereto and such other
instruments (if any) as are reasonably necessary or advisable to
evidence the assumption by Trust Successor of liability for all moneys
payable and property deliverable hereunder and the covenant of such
Trust Successor to pay and deliver or cause to be delivered the same
and its agreement to observe and perform all the covenants and
obligations of Advantage Trust under this agreement; and
(b) such transaction shall be upon such terms and conditions as
substantially to preserve and not to impair in any material respect any
of the rights, duties, powers and authorities of the other parties
hereunder.
3.2 VESTING OF POWERS IN SUCCESSOR
Whenever the conditions of Section 3.1 have been duly observed
and performed, Trust Successor, ExchangeCo and AOG shall, if required by Section
3.1, execute and deliver the supplemental agreement provided for in subsection
3.1(a) and thereupon Trust Successor shall possess and from time to time may
exercise each and every right and power of Advantage Trust under this agreement
in the name of Advantage Trust or otherwise and any act or proceeding by any
provision of this agreement required to be done or performed by the Board of
Directors of AOG or any officers of AOG on behalf of Advantage Trust may be done
and performed with like force and effect by the directors or officers (or other
agents or governing body) of such Trust Successor.
3.3 WHOLLY-OWNED SUBSIDIARIES
Nothing herein shall be construed as preventing the
combination of any wholly-owned direct or indirect subsidiary of Advantage Trust
with or into Advantage Trust or the winding-up, liquidation or dissolution of
any wholly-owned subsidiary of Advantage Trust provided that all of the assets
of such subsidiary are transferred to Advantage Trust or another wholly-owned
direct or indirect subsidiary of Advantage Trust and any such transactions are
expressly permitted by this Article 3.
ARTICLE 4
GENERAL
4.1 TERM
This agreement shall come into force and be effective as of
the date hereof and shall terminate and be of no further force and effect at
such time as no Exchangeable Shares (or securities or rights convertible into or
exchangeable for or carrying rights to acquire Exchangeable Shares) are held by
any party other than Advantage Trust, ExchangeCo or any of their respective
subsidiaries or affiliates.
4.2 CHANGES IN CAPITAL OF ADVANTAGE TRUST AND AOG
Notwithstanding the provisions of Section 4.4 hereof, at all
times after the occurrence of any event effected pursuant to Sections 2.6 or 2.7
hereof, as a result of which either Advantage Trust Units or the Exchangeable
Shares or both are in any way changed, this agreement shall forthwith be amended
and modified as necessary in order that it shall apply with full force and
effect, mutatis mutandis, to all new securities into which
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Advantage Trust Units or the Exchangeable Shares or both are so changed, and the
parties hereto shall as soon as possible execute and deliver an agreement in
writing giving effect to and evidencing such necessary amendments and
modifications.
4.3 SEVERABILITY
If any provision of this agreement is held to be invalid,
illegal or unenforceable, the validity, legality or enforceability of the
remainder of this agreement shall not in any way be affected or impaired thereby
and this agreement shall be carried out as nearly as possible in accordance with
its original terms and conditions.
4.4 AMENDMENTS, MODIFICATIONS, ETC.
This agreement may not be amended, modified or waived except
by an agreement in writing executed by Advantage Trust, ExchangeCo and AOG and
approved by the holders of the Exchangeable Shares in accordance with Section
10.2 of the Share Provisions.
4.5 AMENDMENTS
Notwithstanding the provisions of Section 4.4, the parties to
this agreement may in writing, at any time and from time to time, without the
approval of the holders of the Exchangeable Shares, amend or modify this
agreement for the purposes of:
(a) adding to the covenants of Advantage Trust, ExchangeCo, AOG or any
combination of them for the protection of the holders of the
Exchangeable Shares provided that the Board of Directors of ExchangeCo
and the Board of Directors of AOG are of the opinion that such
additions are not prejudicial to the interests of the holders of the
Exchangeable Shares;
(b) making such amendments or modifications not
inconsistent with this agreement as may be necessary or desirable with
respect to matters or questions which, in the good faith opinion of the
Board of Directors of each of AOG and ExchangeCo, having in mind the
best interests of the holders of Exchangeable Shares it may be
expedient to make, provided that such Boards of Directors, acting on
the advice of counsel, shall be of the opinion that such amendments and
modifications will not be prejudicial to the interests of the holders
of Exchangeable Shares; or
(c) making such amendments or modifications which are required for the
purpose of curing or correcting any ambiguity, defect, inconsistent
provision, clerical omission, mistake or manifest error; provided that
the Board of Directors of ExchangeCo and the Board of Directors of AOG
are of the opinion that such amendments or modifications will not be
prejudicial to the interests of the holders of the Exchangeable Shares.
4.6 MEETING TO CONSIDER AMENDMENTS
AOG, at the request of Advantage Trust, ExchangeCo, or any
combination of them, shall call a meeting or meetings of the holders of the
Exchangeable Shares for the purpose of considering any proposed amendment or
modification requiring approval of such shareholders. Any such meeting or
meetings shall be called and held in accordance with the by-laws of AOG, the
Share Provisions and all Applicable Laws.
4.7 AMENDMENTS ONLY IN WRITING
No amendment to or modification or waiver of any of the
provisions of this agreement otherwise permitted hereunder shall be effective
unless made in writing and signed by all of the parties hereto.
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4.8 ENUREMENT
This agreement shall be binding upon and inure to the benefit
of the parties hereto and the holders, from time to time, of Exchangeable Shares
and each of their respective heirs, successors and assigns.
4.9 NOTICES TO PARTIES
All notices and other communications between the parties
hereunder shall be in writing and shall be deemed to have been given if
delivered personally or by confirmed telecopy to the parties at the following
addresses (or at such other address for such party as shall be specified in like
notice):
(a) if to Advantage Trust or ExchangeCo, at:
c/o Advantage Oil & Gas Ltd.
0000, 000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Chief Financial Officer
Telecopier No.: (000) 000-0000
(b) if to the Trustee, at:
Computershare Trust Company of Canada
000, 000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Manager, Corporate Trust Department
Telecopier No.: (000) 000-0000
Any notice or other communication given personally shall be
deemed to have been given and received upon delivery thereof and if given by
telecopy shall be deemed to have been given and received on the date of receipt
thereof unless such day is not a Business Day in which case it shall be deemed
to have been given and received upon the immediately following Business Day.
4.10 COUNTERPARTS
This agreement may be executed in counterparts, each of which
shall be deemed an original, and all of which taken together shall constitute
one and the same instrument.
4.11 JURISDICTION
This agreement shall be construed and enforced in accordance
with the laws of the Province of Alberta and the federal laws of Canada
applicable therein.
4.12 ASSIGNMENT BY AND SUCCESSOR TO EXCHANGECO
Notwithstanding any other provision in this agreement to the
contrary:
(a) Any corporation into or with which ExchangeCo may be merged or
consolidated or amalgamated, or any corporation resulting therefrom to
which ExchangeCo shall be a party, shall be the successor to ExchangeCo
hereunder without any further act on its part or any of the parties
hereto; and
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(b) ExchangeCo may transfer or assign its rights and interest in or under
this agreement to any affiliate of AOG or Advantage Trust ("successor
corporation"); provided that the successor corporation shall expressly
assume, by agreement satisfactory in form to the Trustee and executed
and delivered to the Trustee, the due and punctual performance and
observance of each and every covenant and condition of this Agreement
to be performed and observed by ExchangeCo.
4.13 ATTORNMENT
Each of Advantage Trust, ExchangeCo and AOG agrees that any
action or proceeding arising out of or relating to this agreement may be
instituted in the courts of the Province of Alberta, waives any objection which
it may have now or hereafter to the venue of any such action or proceeding,
irrevocably submits to the jurisdiction of such courts in any such action or
proceeding, agrees to be bound by any judgment of such courts and not to seek,
and hereby waives, any review of the merits of any such judgment by the courts
of any other jurisdiction.
4.14 LIABILITY OF ADVANTAGE TRUST
The parties hereto acknowledge that AOG is entering into this
agreement solely on behalf of Advantage Trust and the obligations of Advantage
Trust hereunder shall not be personally binding upon AOG or any of the
Unitholders of Advantage Trust and that any recourse against Advantage Trust or
any Unitholder in any manner in respect of any indebtedness, obligation or
liability of Advantage Trust arising hereunder or 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
Advantage Trust Indenture.
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IN WITNESS WHEREOF the parties hereto have caused this
agreement to be signed by their respective officers thereunder duly authorized,
all as of the date first written above.
ADVANTAGE ENERGY INCOME FUND, ADVANTAGE OIL & GAS LTD.
by its authorized attorney,
ADVANTAGE OIL & GAS LTD.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxxx
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Name: XXXXX XXXXXXXX Name: XXXXX XXXXXXXX
Title: Chief Financial Officer Title: Chief Financial Officer
ADVANTAGE EXCHANGECO LTD.
By: /s/ Xxxxx Xxxxxxxx
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Name: XXXXX XXXXXXXX
Title: Secretary
